Amendments Nos. 27, 30, 32, 33 and 95 are related and may be discussed together, by agreement.
SECTION 6.
I move amendment No. 27:
In page 7, subsection (1), lines 7 and 8, to delete "a matrimonial home to which section 4 applies" and substitute "an interest to which section 4 applies or applied in a matrimonial home".
These are drafting amendments. Section 4 applies to an interest in the matrimonial home which becomes vested jointly, rather than to the home itself. We are substituting the words "an interest to which section 4 applies", rather than the "matrimonial home". It is a technical point in the section.
Amendment agreed to.
Amendments Nos. 28, 29, 31 and 35 are related and may be discussed together, by agreement. If amendment No. 28 is agreed, amendment No. 29 cannot be moved.
I move amendment No. 28:
In page 7, subsection (1), lines 9 and 10, to delete "either of the spouses concerned or by the personal representative, or by or on behalf of a child, of a deceased spouse" and substitute "the spouse who is not the spouse in whose favour section 4 applies or, if the first-mentioned spouse has died, by the personal representative, or by or on behalf of a child, of that spouse".
This is a drafting amendment. The amendment makes it clear that it is only the spouse who originally owned the matrimonial home who can apply to the court to have the statutory joint tenancy disapplied and ownership revested in him or her. It is obvious from the existing text that it would be inappropriate for the benefiting spouse to invoke the section with the object of having section 4 disapplied, as that spouse would have to show it would be unjust for her or him to benefit from the joint tenancy by reason of his or her unreasonable conduct. Under the proposed revision of section 7 the benefiting spouse can have section 4 disapplied by making a declaration to that effect. This amendment removes any ambiguity about which spouse can avail of this section and disapply section 4. It clarifies that the spouse who originally owned the matrimonial home can make the application. The spouse who benefits but who does not wish to benefit can make a declaration in this regard.
I have an amendment to delete the words "by or on behalf of a child". The amendment is tabled to clarify how this will work, rather than for any other reason. The effects of the section are that an application can be made by or on behalf of a child of a deceased spouse to the effect that a surviving spouse should not benefit from the section. I can see certain circumstances in which this may be justified, but I am worried about it. Perhaps the Minister could clarify the circumstances in which he envisages that such an application might be made by the child of a deceased spouse. If the child of a deceased spouse is going to make that application, the child will presumably make allegations about the conduct of the surviving spouse.
Under this section a court will determine this type of application without looking at the child's motive for making the application. This could give rise to various problems. It may be that a child in this context is not confined to a person under 21 years or 18 years; it may apply to a 50 year old or a 55 year old child of a deceased parent. We are not necessarily talking about young children; it could involve adults.
A child making such an applcation may have motives which may not be meritorious. Presumably, the motive may well be that the child may benefit financially in some way by inheritance if a spouse is dead. For example, let us assume that a married couple have three children and that the first wife dies after 25 years of marriage. The husband remarries and dies ten years later. Let us also assume the children from the previous marriage resent or do not get on with the wife of the second marriage and that the Bill would work in a way which would mean the second wife automatically has a joint interest. The husband may recognise that the second wife will benefit from the house being in joint names and, therefore, makes only a small provision for her in his will on the basis that she will inherit the main family asset. He then makes other provisions for his children. Let us assume the child who does not get on with the wife realises that if he or she can unravel the joint ownership more property will fall into the husband's estate. The wife may end up far worse off than the husband envisaged. I am not sure how that will work in practice. Will the court be able to examine the motive of the child or will the wife be put on trial for alleged rows or misconduct which the child suggests was directed by the surviving wife to that child's deceased parent? Children, in certain circumstances, should be allowed to make this application.
The situation is more complicated than envisaged in the Bill. There are various difficult family situations which could trigger unmeritorious applications by children. This section confines the court to examining the accusations levied and it does not look at whether the child will benefit personally from this, perhaps the child should benefit personally. There may be circumstances where that is the motivating factor. Such an application may create substantial legal expense for a widow or widower who has to defend it. The expense of litigation may force them to agree to things to which they should not have to agree.
I have raised this issue because there is a problem with it. I am not sure how this section, in relation to the way children will deal with it, will interact with the unworthiness to succeed and the disinheritance section of part 10 of the Succession Act, 1965. There is a problem in this regard. These are old problems which will arise after someone's death. It is not envisaged during the lifetime of both the husband or the wife that children could make such an application. As I understand it, this section relates to a child of a deceased spouse.
How would this work in circumstances where an application was brought and the child was under the age of 18? Normally, the surviving parent would be the person in loco parentis. How would this work, if for example, a child was in the custody of one spouse and the other spouse was living outside the family home because of a marriage break-up about which the child had a one sided view? How would this work if the Act had been triggered because both parties were living together when it came into force and the house was in joint ownership? Eventually the parties separated, and the wife remained in the house with the child until she dies. On that basis, because there was no separation agreement or court decisions about ownership of the house, the position would be that the husband may have a joint interest in that house if originally owned by the wife, or, similarly if the wife had moved out and the husband died the same would apply. If the child thought that the husband was at fault for the marriage break-up but had no real insight into the level of incompatibility between the husband and wife — perhaps the husband and wife made an equal and sad contribution to the marriage break-up — who would make decisions as to whether an application should be brought on behalf of the child to ensure the surviving spouse did not benefit?
I am not sure if there is sufficient guidance in this section for the courts. Perhaps when we talk about the section we will return to that. We have spoken about it being unjust and subsection (5) (a), (b) and (c) of this section is peculiarly drafted. This section does not lay out a sufficiently clear parameter in which the courts may operate. We will return to this when we talk about the section.
I have no problem with the principle of the Minister's amendment but we should not let it go through without teasing it out a little more.
It is important to tease it out. The thinking behind it is that we agree that there could be circumstances which would validly give rise to a spouse bringing an application under section 6 to disapply section 4, some spouses will do that. However, there could be cases whereby a spouse would have adequate grounds for doing that, but for one reason or another does not. There could be a number of reasons for that. He or she might be intimidated by the other spouse, to frightened to do it, or the spouse might decide not to do it to make efforts to preserve the marriage, etc. If the offended spouse who was intimidated from bringing the application dies, it should be open to a child to bring the application after her death.
The effect may relate to property as far as the child is concerned and the intent would be to give a property benefit to that child. If the circumstances could be established, a court could decide that if an application had been brought by the spouse, and if the spouse had not been intimidated from doing so and subsection (5) of section 6 would have been brought into play, the court would have the discretion to apply it at the instance of the child and disapply section 4. The question of whether the application would be meritorious or whether the child would be in a position to establish that position to the satisfaction of the court, as in any other case, would depend on whatever evidence was adducible. The court would have to be satisfied that it was an appropriate case to apply the provisions of section 6. If the child was unable to do that they would be unable to establish that situation. If there was evidence to establish it and the court was satisfied, perhaps we would agree that the sequence of events was appropriate.
Regarding the question of a child being under age and who would bring the application as the child's next friend, there are procedures whereby next friends may be appointed on different bases. I would be interested to hear other contributions on this subject. It seems it would be inappropriate to block out the possibility of rights to a child after the death of a parent in making an application under section 6. There might be difficulty in furnishing proofs but there could be cases where proofs would be available and if that were the case that possibility should be left open.
The issues raised here are quite complex. Children could have a substantial valid direct interest or an indirect interest. Concern has been expressed about how this might complicate matters and whether it is desirable to have this other area of potential family litigation which could take place in the kind of environment Deputy Shatter is referring to, where there is substantial breakdown in families. It will have to be handled very carefully.
I wish to refer to the issue of conveyancing. New difficulties have been outlined to me by many people engaged in conveyancing practice. Will this legislation involve new obligations in the disposing of a home after the death of a person? The time span referred to here, under which children would have rights to take cases, varies from three to nine months in different circumstances. Would it then be necessary to try to notify all children of a potential right under this section or would any sale have to wait until such periods elapsed to ensure the sale was valid? I am not an expert in this area so I can only repeat what has been suggested to me. If the personal representative of a deceased person was to take responsibility for the applications on behalf of children, or in the context of transferring property, ensuring that any future claims would be settled out of the proceeds, would that be a means of indicating that any actions taken would relate to the wishes of the deceased? It might resolve a number of difficulties in the context of conveyancing. I hope I have made myself clear.
The points mentioned to me related to any purchaser who would want evidence that no child would make an application under section 6 before completing a purchase. It might be difficult to give this in practice. It might not be possible to notify all the children. What duties would the personal representative have to undertake to try to locate children and inform them of their rights? Could that right be given over to the personal representative? Will the purchaser be obliged to inquire whether there are obligations under this section? The issues raised by Deputy Shatter are broader and more fundamental. These are technical matters and probably could be resolved in one section.
I take Deputy Flaherty's point about conveyancing difficulties. We have done our best to address that by putting in the limitation period in section 6. There would not be a duty on the personal representative alone. The personal representative does have a right to bring the application under the section as well and that personal representative in many cases could be the misconducting spouse. It seems a separate right would have to be given there. I did consider omitting the right of the child. I can understand both arguments. It seems that there could be cases where, according to the wording of subsection (5) (a), the conduct of the spouse who benefited was such that in the opinion of a court would warrant disentitlement. The fact that a spouse was intimidated into bringing the application during her life should not disentitle a child after the death of that spouse from bringing the application. If they are in a position to satisfy the court of those facts and have that disentitlement brought into play subject to the limitation period we provided for, it is on balance a reasonable thing to do.
Will the Minister consider whether some rule of law could be introduced in this Bill to the effect that a presumption would exist that no such application had been brought in a conveyancing context thereby not requiring separate statutory declarations or whatever as to what may or may not have happened during a specific period of time and not requiring searches to be made of court records to see where proceedings started?
It seems that if a limitation period for the commencement of proceedings is now put in place, the only basis on which a solicitor purchasing can be absolutely sure that there is not any such proceeding in being is by making a court search of some kind which might be quite complex. It is adding to the difficulty of conveyancing if an extra document and an extra search is required. It would be more to the point to cast on anybody who is making an application under the section the onus of bringing it to the attention of potential vendors by registering lis pendensor whatever. Convenience suggests that some rule that someone can proceed on the basis that there is no such litigation in being or that no such litigation has been commenced should be the norm rather than the reverse.
I will certainly consider that. We dealt with this in the limitation provision in subsection (2).
Yes, but to issue a summons and leave it lie will just create chaos. The child might decide to issue a summons in order to frustrate a sale.
Yes, but if they do that there may be a basis to it. They have to be given their opportunity to have their case heard.
The point I am making is that there should be some presumption that such a summons has not issued so that people do not have to go running round the courts to find out details.
I see the Deputy's point.
On the same point, there is obviously a situation that this would not disentitle them to a claim on the proceeds if that were awarded. The child's rights would then be protected if there was a serious application that was ultimately successful. The obligation will still be there for the child to benefit from the proceeds of any such sale. That could apply.
The proceeds might have been disposed of. I will consider Deputy McDowell's point. The proceedings per se would not affect a sale unless they were registered as a lis pendens. A search is made on every sale in the lis pendensregister. I do not know whether it would be necessary to have anything in addition to that. I will certainly consider that.
Amendment agreed to.
Amendment No. 29 not moved.
I move amendment No. 30:
In page 7, subsection (1) (a), line 13, to delete "home" and substitute "interest".
Amendment agreed to.
Amendment No. 31 was discussed with amendment No. 28.
I move amendment No. 31:
In page 7, subsection (1) (b), lines 14 and 15, to delete ", or by or on behalf of a child,".
I will not be pressing this amendment. I do not want to labour this because it is difficult and I agree with the Minister that there are circumstances in which a child or another third party should be able to make applications. Will the Minister, between now and Report Stage, further reflect on some of the difficulties that could arise in that area? We can all see the reason why it should be there. There are problems with it and I do not want to labour it any more than that.
Amendment, by leave, withdrawn.
I move amendment No. 32:
In page 7, subsection (1) (b), line 17, to delete "home" and substitute "interest".
Amendment agreed to.
I move amendment No. 33:
In page 7, subsection (1) (i), line 21, to delete "home" and substitute "interest".
Amendment agreed to.
I move amendment No. 34:
In page 7, subsection (1) (ii), line 26, to delete "his" and substitute "the other".
Amendment agreed to.
Amendment No. 35 not moved.
I move amendment No. 36:
In page 7, subsection (2), line 29, to delete "be made not" and substitute "not be made".
Amendment agreed to.
Amendments Nos. 36a, 36b and 36c are cognate and may be discussed together.
I move amendment No. 36a:
In page 7, subsection (3), line 31, before "A child", to insert "A personal representative or".
Amendment agreed to.
I move amendment No. 36b:
In page 7, subsection (3), line 34, Before "the", to insert "the personal representative or, as the case may be,".
Amendment agreed to.
I move amendment No. 36c:
In page 7, subsection (3), line 36, to delete "the child" and substitute "the personal representative, or the child,".
Amendment agreed to.
I move amendment No. 36d:
In page 7, lines 38 to 40, to delete subsection (4) and substitute the following:
"(4) (a) Subject to paragraph (c), notice of an application under subsection (1) shall be given to the other spouse, or the surviving spouse, concerned, as the case may be, and to such, if any, other person as the court may direct.
(b) Subject to paragraph (c), notice of proceedings for the purposes of subsection (3) shall be given, where appropriate, to the surviving spouse concerned and to such, if any, other person as the court may direct.
(c) Where the court is satisfied that, after the making of all appropriate, reasonable inquiries by the person making an application, or instituting proceedings, such as aforesaid, the whereabouts of the surviving, or other, spouse concerned cannot be ascertained, it may dispense with the requirement as to the giving of notice in paragraph (a) or (b), as the case may be, to such spouse.".
Amendment agreed to.
I move amendment No.37:
In page 7, subsection (5), to delete lines 42 to 44 and substitute the following:
"unless it is satisfied that it would be unjust not to grant it, having regard to all the circumstances, including—".
This drafting amendment was suggested by the Law Society. The conveyancing committee of the Law Society suggested the words, "the circumstances of the case", would be more appropriate for the court to have regard to than the "circumstances of the spouse". That makes good sense and is the reason for this drafting amendment.
Amendment agreed to.
I move amendment No. 38:
In page 8, subsection (5) (b), line 5, to delete "him" and substitute "that spouse".
Amendment agreed to.
I move amendment No. 39:
In page 8, subsection (5) (c), line 10, to delete "him" and substitute "that spouse".
Amendment agreed to.
I move amendment No. 40:
In page 8, between lines 15 and 16, to insert the following subsection:
"(7) Where an order is made under subsection (1), a copy of the order, certified to be a true copy by the registrar or clerk of the court concerned, may—
(a) in the case of registered land, be lodged in the Land Registry for registration in a register maintained under the Act of 1964 and thereupon an entry shall be made in the appropriate register to the effect that, as on and from the date specified in the order, the matrimonial home concerned ceased to be a matrimonial home to which section 4 applies, or
(b) in the case of unregistered land, be registered in the Registry of Deeds.".
This amendment proposes to add a subsection after section 6 (6). The object is to provide for the formal registration in the Land Registry and the Registry of Deeds of a court order preventing the application of section 4 and to have this simplified procedure for revesting the benefiting spouse's share of the statutory joint tenancy of the other spouse. In other words, where a disentitlement is ordered by the court it is formally registered that way in the Land Registry and the Registry of Deeds.
Can the Minister indicate how appeal periods will be covered by that? Somebody might go down to the Registry of Deeds, produce an order and have it registered. If the other party to the proceedings is most unhappy with the situation is there a clear title which can be conveyed in the meantime? Is there provision made for the courts to provide a stay pending an appeal? Can it be done the next day? What about a purchasing solicitor? How is one to find out if a notice of appeal is pending?
Surely it would be better to say that the court may direct or give permission that this be done. That at least the issue of whether it is going to be done in the immediate future will be brought to the attention of the court. Also the unsatisfied party will have some time limit within which they can or cannot do it accordingly.
I take Deputy McDowell's point but, as somebody who spent quite a number of years running around court offices trying to get court orders out, I can assure him they do not let the orders out until the appeal period has expired. If one gets them within a month or two one is doing well. I do not think there is any need for concern on that point.
Amendment agreed to.
I move amendment No. a40a:
In page 8; between lines 15 and 16, to insert the following subsection:
"(7) On an Application under subsection (6) (a) the Court shall have power to make an Order declaring that the Act of 1976 shall no longer apply to the Family Home in question in so far as the spouse, whose consent is being dispensed with, is concerned.".
This amendment is designed to ensure that where the court decides that due to the circumstances or the conduct of a particular spouse, his or her interest in the home should not be triggered by the Act, or in effect they should be excluded from the application of section 4. Equally the court should have the power to hold that the Family Home Protection Act no longer applies to that home in so far as that spouse's rights are concerned.
The Minister in this section is giving the court a discretion to make an order under section 4 dispensing with the consent. The proposed subsection 7 seeks to give the court a broader discretion. There may be circumstances where one may want to generally dispense with someone's consent but would not want to remove all of the application of the Family Home Protection Act from the family home. For example, it may be a good idea in certain circumstances to dispense with a person's negative right to withhold consent to a sale, while keeping in place their obligations upon which one may want to rely.
This is a technical matter. I have raised it for discussion and I would be interested in the Minister's response.
Section 6 (6) authorises the court on an application to it to exclude the statutory joint tenancy of a matrimonial home, to make an order under section 4 of the Family Home Protection Act, 1976 dispensing with the prior consent of a spouse to the conveyance and interest in the family home by the other spouse. The court can dispense with the spouse's concerns whether or not it makes an order excluding the application of joint ownership of the matrimonial home on the ground of that spouse's conduct or unfair enrichment. Presumably it would be more likely to dispense with consent where it makes such an exclusion order. Dispensing with the spouse's consent seems to leave the other spouse free to convey his or her interest in the family home.
The amendment appears to go further than the existing provision. It could enable the court to exclude all the protective provisions of the 1976 Act from both spouses. I would like to consider the implications of that, where the spouses continue to live together and after the application under section 6 has been determined. I am thinking of section 5 of the Family Home Protection Act which enables the court to make an order for protection of the family in the interest of a spouse or a dependent child where the other spouse is engaging in conduct which may lead to the loss of the home or make it unsuitable for habitation. I would like to consider further implications of the amendment and, perhaps, we can return to it on Report Stage.
I raised this now to give the Minister the opportunity to consider it. I was conscious of the fact that in certain circumstances it may be beneficial to keep the Act in place because of section 5. On the other hand where it is determined that the other spouse is unmeritorious and the protections of section 4 are removed, the court may be of the view that the house-owning spouse should be freed from any of the other problems that the unmeritorious spouse could create by use of the Family Home Protection Act.
For example, section 9 makes provision for household chattels. That section can be invoked by a spouse to stop another spouse selling household chattels. A wife who owns a house may want to sell the dining room suite and purchase a new one. A husband who lacks merit and is excluded from the application of the Act may invoke section 9 in a District Court to create difficulties for his wife and for no other reason. It is not desirable that a court would automatically exclude the full application of the Family Home Protection Act from all homes in this situation. I could envisage circumstances where a judge should have that available as an option, if requested, to exercise it. If the Minister is willing to consider the matter I am quite happy not to press my amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 40a. and 67a. are related and may be discussed together.
I move amendment No. 40a.
In page 8, subsection (7), to delete lines 18 and 19 and substitute "specified under paragraph (a) or referred to in paragraph (b) of section 22 (5) of the Building Societies Act, 1989.".
These are purely clarifying drafting amendments.
Does the necessity for these amendments suggest that some of this was drafted before 1989?
The Progressive Democrats were in Government and did not produce this legislation. Perhaps the Deputy should keep his head down.
It fascinates me that it might appear that some of these provisions are already four or five years old. Are we getting an explanation on that?
I can only answer for the period from last January onwards.
Amendment agreed to.
Question proposed: "That section 6, as amended, stand part of the Bill."
I want to raise two issues in relation to the generality of the section. The first is one that clearly requires an amendment to the section and I am raising it to allow the Minister to bring forward an amendment on Report Stage. If the Minister does not I will do so.
There are a variety of circumstances in which section 6 could be invoked. There may be a situation that is most straightforward where simply one spouse, either the husband or the wife, for reasons which he or she believes to be good ones, does not want the other spouse to benefit from joint ownership and brings summary proceedings, presumably in the Circuit Court, under the section. When the case is heard the court has to apply the criteria — I will speak more on this — which are provided for in subsection 5 of the section. Such a case would be a simple one under the Bill though I suspect it will not be quite as simple as some people envisage if it is a fully contested case. There may be circumstances where it is not contested and it may be straightforward.
It seems unlikely that husbands and wives who are getting on well with each other are going to be rushing, willy nilly, into the courts invoking section 6. Indeed, husbands and wives who are getting on well with each other and living together are not going to be invoking the provisions of the Bill. It will probably put in legal terms what many of them understand to be the reality of their family property arrangements where many people believe the family home to be jointly owned regardless of whose name it is in. Often that was their intention but they did not effect the transfer in that way.
More often section 6 is going to be involved where marriages have broken down and where husband and wife are separating or have separated and where they have not been able to reach an amicable resolution of their marriage difficulties by putting in place an agreement setting out the future family arrangements, both in relation to children, finance, the matrimonial home, support payments and other property. People reach agreement on all of these matters when their marriages break down.
Presumably the agreement will now have to address mutual rights and there is a section in the Bill which allows people to opt in or opt out of the Act. When people do not reach agreement, unfortunately they will resort to court proceedings and they would be extremely foolish to simply bring an application under this Bill on its own. The more usual approach that they will adopt will be to bring proceedings under the Judicial Separation and Family Law Reform Act, which I was responsible for putting through the House, and seek comprehensive orders effecting a separation and dealing with the custody of their children and with property. It seems that there is a lack of linkage between this section and the Judicial Separation Act, again unless there is something in the Bill which I have not noticed.
The Judicial Separation Bill, when I brought it before the House, was designed to get away from a problem we had all the way up to 1989 which was that if people's marriage broke down and they had to resort to the courts to resolve their problems, very often instead of simply bringing one court case they had to bring two, three or four different court applications using court documents under different legislation. On some occasions it was possible to have all the matters about which a couple were disagreeing heard in one court hearing. On other occasions there might have been a series of court hearings dealing with different aspects of their family difficulties.
The Judicial Separation Act allowed everything to be dealt with in one set of court proceedings heard by one judge in one court. It did that by providing not only for judicial separation proceedings but providing, in section 16, for a jurisdiction to be conferred on the Circuit and High Courts, which can hear separation proceedings, to make appropriate court orders under a variety of legislation such as the Family Home Protection Act, the Family Law (Protection of Spouses and Children) Act, the Married Women's Status Act, the Guardianship of Infants Act etc.
Section 6 will be used most often in circumstances where marriages have broken down and husbands and wives are sadly in court seeking a decision on how matters should be resolved between them. There is a need to amend section 6 or to include a section later to extend its application so that when one brings judicial separation proceedings one does not end up having to bring a separate proceedings under section 6 on a separate set of court papers. This would add to the legal expense and difficulties of couples because of the great deal of duplication involved.
The amendment would need to amend section 16 of the 1989 Act by adding a new subsection — probably to subsection (h) of the Act — which allows the courts to assist the Minister. It would probably read, "an order under section 6 of the Matrimonial Home Act, 1993 to make such orders as can be made under that section."
If that is not done it means that, first, in the early months after the Bill is enacted, people will bring judicial separation proceedings, often not the appropriate proceedings, and they would have to bring them later or they will be duplicating court proceedings and court papers. It is a technical matter and, perhaps, the Minister will look at it and table an appropriate amendment on Report Stage.
Second, I feel I am right in saying that in most instances a section 6 application will take place in conjunction with judicial separation proceedings. It could have a separate life arising out of some conveyance of a property but most often it will be in separation proceedings.
Subsection (5) sets out a number of criteria that the court should have regard to in determining whether a spouse does or does not have a joint interest in the family home or whether they should be excluded from the application of section 4. Section 20 of the judicial separation Act sets out a series of criteria that the courts must have regard to in determining whether property adjustment orders should be made and whether someone should be excluded from the matrimonial home in determining whether lump sum payment orders should be made. In other words, there is a set of comprehensive criteria to which the court must have regard.
Will the Minister explain how that set of criteria in the context of judicial separation proceedings is to interact with the criteria set out in subsection (5)? It seems in this regard that there are some conflicts and difficulties. The phrase, "enriching someone unfairly", is used. Will the Minister explain what is meant by the courts being able to decide that someone should not have a joint interest in the family home if it will enrich them unfairly. It would seem that could, perhaps, be used in circumstances which might be detrimental to the operation of the legislation.
If I earn a big salary, buy a luxurious home worth between £200,000 and £250,000 and my wife spends her day working as a housewife and mother in the home caring for the children or her husband and has no income, would it not, under that provision, be open to the courts to decide that it would enrich the wife unfairly if she was to get a joint interest? This is a dangerous provision, it is contrary to the intent of the legislation. I know why the phrase is there; it is to deal with other situations but it is contrary to the intent of the legislation and is at variance with a provision in the judicial separation Act which was of substantial importance.
The provision in the judicial separation Act, for the first time in legislative history, required the courts to recognise the value of the work a wife did in the home. The provision in section 20 of the Act regarded that matter as of some significance and importance and in doing so brought a new legal principle into play, one which the courts had refused to adopt under the Married Women's Status Act. Section 20 (2) (f) of the 1989 Act requires the courts, in determining whether they should make a property adjustment order or not, to look at the contributions which each spouse has made or is likely in the foreseeable future to make to the welfare of the family, including the contributions made by each spouse to the income earning capacity, property and financial resources of the other and any contribution by looking after the home or caring for the family.
Is it possible, under this Act, for a judge to regard a wife as being unjustly enriched if she is living in a home of reasonable value which has been paid for solely by the husband and if her sole contribution has been to look after the home or care for the family? Knowing the attitudes displayed by some members of the Judiciary, there is a very real possibility that may happen. If it did happen and a case was taken to the Supreme Court, it is likely that the Supreme Court would say such an approach was contrary to the intent of the Act. The intention is to give wives a joint interest where they do not have it and primarily wives, who have made no immediate financial direct or indirect contribution to the acquisition of the home, are going to benefit.
This phrase, "enriching unfairly", which, I think, is designed with other situations in mind, in the absence of the Act acknowledging that there is a value attached to working in the home and caring for the family, is a dangerous one. The criteria in subsection (5) are a good deal less comprehensive than those set out in section 20 of the judicial separation Act. It is going to give rise to practical legal problems when the workings of this section are applied in conjunction with the Judicial Separation Act in circumstances where marriages have broken down. It is in those circumstances that this section will most often be invoked.
If a marriage is annulled, does the wife lose, by virtue of that annulment of the marriage, her joint ownership in the matrimonial home which has been based on the presumption that the marriage was valid? If the marriage is annulled do those statutorily conferred rights die on the annullment?
In relation to the last point made by Deputy O'Donnell, if there is a separation agreement rather than an annullment, what is the legal position in relation to rights? If there is a signed agreement in relation to the home, does this Act supersede such agreements or do the agreements stand?
Are these agreements made before the Act?
Yes.
I return to an issue which I raised yesterday and which the Minister of State described as the downside of the Act.
A spouse who owns the family home and whose spouse is indebted may feel that it is entirely unfair and wrong that the operation of section 4 would be effectively to hand over the family home to the spouse's creditors in some circumstances. There are many cases where both women and men are capable of leaving a trail of debt behind them and where one of the anchor points for their family is that one partner in the marriage holds on to the assets and keeps them safe from the depredations of the more irresponsible spouse or the spouse on whom bad luck has descended, such as a business person whose business has collapsed.
Something must be done to give explicit recognition in the criteria set down in section 6 (5) to the spouse who feels that the effect of section 4 would be to deprive the family of half of the assets which are now safe from the debtor spouse's creditors. There should be a clear acknowledgment in writing that one of the grounds on which a court can make an order under section 6 is that section 4, if it operated automatically, would tend to unjustifiably impoverish the family. There is a provision in the criteria laid down in section 6 (5) (a), and (c) that the unjustified enrichment of one spouse is one of the grounds on which a court could intervene.
A perfectly ordinary situation which those engaged in family law and other forms of law come across very frequently is where a spouse owns the major asset in a family, the family home and the other spouse is, for whatever reason be it illjudgment or bad luck, a judgment debtor. There should be an explicit acknowledgment and explicit direction to the courts that they can direct, on the application of the owner spouse, that the section should not apply where the effect would be to deprive the family of half of its assets.
This may present some drafting difficulties but the Minister of State agreed yesterday that he would consider including a subparagraph (d) in subsection 5 giving clear guidance to the courts that this is one of the contemplated grounds. I would like to hear from the Minister that he goes along with the generous approach taken by the Minister of State yesterday, otherwise this will be a Trojan horse for many families. Many will be worse off following the passing of this Bill and it could prove to be a total disaster for some families.
On possible impoverishment, I received reports of the debate by the Select Committee yesterday. I apologise to the Committee for my absence but I had to attend a Government meeting. I understand we have arranged meetings for the week after next and on the Tuesday I will again be attending a Government meeting and I apologise to the Committee in advance for not being able to attend on that day.
On the question of a spouse who leaves a trail of debts, there are different situations. In the case of a compliant spouse who is in difficulty with creditors for various reasons that can be dealt with by the compliant spouse opting out of the operations of the Act thereby leaving the matrimonial home in the name of the spouse who has clearance and no record of debt. That is the position where one spouse would be prepared to row in and recognise the problem. That will arise in some cases.
Where the spouse is not prepared to comply and help out in that way, an application even under the existing wording of section 6, would be open. I think the wording of subsection (5) contemplates that kind of situation but I will examine that further. In addition I am concerned to do what I can to ensure that a home should not be put in any peril. I will be considering the possibility of perhaps approaching the matter in a somewhat different way by trying to devise a provision under which debts incurred by a spouse before the operation of section 4 would not be registerable as judgment mortgages against the matrimonial home after the operation of section 4. I will see whether that can reasonably be attained.
Would the Minister consider that debts before the operation of section 4 in respect of any matrimonial home should not be because otherwise it will be a historical protection which will become more and more irrelevant with the passage of years? In relation to any individual home, it seems to me that that would be a fairer operation. In other words, this protection would continue to have life for the duration of the Act in respect of debts contracted by a spouse.
I do not think one could reasonably do that. In the case of any matrimonial home held on a joint tenancy one or more spouse may run into debt with certain consequences. I do not believe one could go quite that far but it may be possible to provide that where debts were in existence at the time of the coming into operation of section 4, that such a debt would not be amenable to a judgment mortgage against the matrimonial home. That would be a major advance on the subject that was discussed, but I will consider the issue in its generality.
Deputy Burke raised the question of separation agreements made before the Bill is passed. I assure him that they are not affected by the Bill.
Deputy O'Donnell raised a point about annulment. It seems that if a marriage is annulled, the Act would not come into play. We are talking about spouses. This Bill is concerned with the matrimonial home and if it was found that there was no marriage, the Act would not come into play and would be deemed not to have come into play.
Deputy Shatter raised the issues on the linkages with the Judicial Separation and Family Law Reform Act, 1989. Section 5 (3) of this Bill states:
Nothing in this Act shall be construed as preventing a court from exercising any jurisdiction conferred on it by section 5 of the Act of 1976 or Part II of the Act of 1989.
The Judicial Separation Act and the Matrimonial Home Bill contemplate different situations. I accept there may be overlaps in some of the situations described by Deputy Shatter. The Judicial Separation Act, to its credit, is all embracing. It covers not only the matrimonial home but all property, all likely property, all income, all liabilities and all aspects of the marriage. It is dealing with a final complete break between spouses to a marriage and enables the courts to make comprehensive orders, property adjustment orders. Indeed, the entire matrimonial home, let alone half, could be ordered to be transferred and so on. When proceedings are contemplated there, it seems that it encompasses, and supersedes as it were, the operation of this Bill which is of much more limited application being confined as it is to the matrimonial home alone.
The question of whether it may be necessary to include the Matrimonial Home Bill, when it is enacted, as one of the Acts to be taken into consideration when making orders in respect of a separation application under the 1989 Act is something I will consider and if it is necessary to include it I will certainly do so. However, it seems that the powers under the Judicial Separation Act go beyond the powers given to a court under section 6 of this Bill. We are specifically providing in section 5 of this Bill that the 1989 Act, and the full wide-ranging and comprehensive powers given to the court there, is in no way restrained or affected by the Bill. The considerations that the court may apply would not and should not be the same in the Matrimonial Home Bill as they are in the Judicial Separation Act contemplating as they do different situations. Applications may be made under section 6 of this Bill that might not necessarily involve a final break between the parties, they may not even be separated.
The unjust enrichment provision in paragraph (c) is one of the parameters. The main provision, of course, is that the court has to be satisfied that it would be unjust to make the order and then paragraphs (a), (b) and (c) are factors to be taken into account. It will be a matter for the courts to deal with each case on its merits. Deputy Shatter fears that some judges may go awry on this or may make strange decisions.
What is new?
There is no doubt that irrespective of what one puts in an Act, there will be occasions when courts hand down decisions that some of us might not wish. However, there are appeal procedures. One can only draft legislation on the assumption that it will be appropriately applied by the courts and by appeal courts doing the best they can in particular circumstances. In the overwhelming majority of cases the courts do that and do it very well and responsibly.
On the face of it, it is hard to find fault with the provision providing that unjust enrichment is not a perfectly reasonable provision to include as one of the factors to be taken into account that might induce a court to hold that it was appropriate to disapply section 4. It seems a reasonable section and I am reasonably happy with it.
I should mention that one provision that has not been touched on and which I intend to consider between now and Report Stage, is, subsection (2) which deals with the limitation period. I am not sure that I may be suggesting to the House on Report Stage some variation on that as to timings and so on. There will certainly be a limitation period there but I do not know whether it will be quite like that. I may make a suggested variation on that to the House on Report Stage.
Question put and agreed to.
I suggest, as it is 12.50 p.m. that before we commence discussion on the next section we adjourn and reconvene at 2.05 p.m.
It is agreed to have a break for lunch and that we will conclude at 4.30 p.m. On 20 September we will meet from 2.30 to 5 p.m. That is the day of the visit by the Australian Prime Minister. On Tuesday, 21 September, we will meet at 11 a.m. to 1 p.m. and 2.15 p.m. to 5 p.m. and on Wednesday 22 September from 11.00 a.m. to 1.00 p.m. and 2.15 p.m. to 5.00 p.m.
Sitting suspended at 12.50 p.m. and resumed at 2.05 p.m.
NEW SECTION.
We will now take amendment No. 41 in the name of the Minister which seeks to insert a new section. I suggest the following grouping of amendments to amendment No. 41 for debate: amendments Nos. a1, ala, 1a, 1b, 2, 2a to 2m, inclusive, 3 to 6, inclusive. Amendments Nos. 41, 47 and 92 are related and may be discussed together.
I move amendment No. 41:
In page 8, before section 7, to insert the following new section:
7.—(1) (a) In relation to a matrimonial home, the spouse in whose favour section 4 applies (or would apply on the commencement of that section) may make a declaration in writing that the home shall cease to be, or shall not be, a matrimonial home to which section 4 applies.
(b) In relation to the intended matrimonial home of persons contemplating marriage, the person who in relation to that home would become the spouse in whose favour section 4 applies may make a declaration in writing that the home shall not be a matrimonial home to which section 4 applies.
(2) Where a declaration has been made under subsection (1)—
(a) in the case of registered land, the declaration may be lodged in the Land Registry for registration in a register maintained under the Act of 1964 and thereupon an entry shall be made in the appropriate register to the effect that the matrimonial home has ceased to be, or is not, a matrimonial home to which section 4 applies, or
(b) in the case of unregistered land, a copy of the declaration, certified to be a true copy by the spouse or person concerned (or, if that spouse or person is dead, by the personal representative concerned), may be registered in the Registry of Deeds,
and, thereupon, the matrimonial home, or the intended matrimonial home, concerned shall cease to be, or shall not be, a matrimonial home to which section 4 applies.
(3) A declaration under subsection (1) in relation to a matrimonial home or an intended matrimonial home, or a copy of such a declaration, shall not be registered pursuant to subsection (2)—
(a) if the declaration relates to a matrimonial home, before the commencement of section 4, and
(b) if the declaration relates to an intended matrimonial home, before such commencement or before the home becomes the matrimonial home of the persons concerned, whichever is the later.
(4) Section 126 (making of rules by Registration of Title Rules Committee) of the Act of 1964 shall apply to registration pursuant to subsection (2) in a register maintained under that Act as it applies to registration under that Act.
(5) A declaration under subsection (1) shall specify the matrimonial home or intended matrimonial home to which it relates.
(6) The Minister may by regulations provide that a declaration under subsection (1) shall be in a specified form or a form to the like effect.".
I am moving amendment No. 41 as a result of my consideration of the points made by Deputies on Second Stage. Several Deputies felt that a couple should not be permitted to opt out of the joint tenancy conferred by the Bill, unless the benefiting spouse had obtained independent legal advice. I was opposed to a mandatory provision of this kind at the time, and that remains my position. If the benefiting spouse is under such duress that he or she can be made sign a document depriving them of the tenancy, they are as likely to confirm to the independent legal adviser that that is their wish. The end result may make it more difficult for them to get the so-called agreement declared void on the grounds of duress.
I have a further objection. No partner in a marriage, particularly the woman partner, should have imposed on her a liability to go to a solicitor and pay the solicitor a fee if she deicdes to opt out of the tenancy for her own reasons. There are still some provisions on the Statute Book based on the premise that women are regarded, by law, as dependent on their husbands. I hope to eliminate them, but I do not want to be responsible for adding to them.
I mentioned on Second Stage that I considered it wrong that anyone be compelled by law to accept something which that person did not want. That is what the existing text of section 7 amounts to. If the benefiting spouse does not wish to accept the joint tenancy they cannot opt out of it unless the other spouse consents. The benefiting spouse could have good reason for not wanting the joint tenancy. For example, the home might already be heavily encumbered or the spouse might be more than financially secure. For these reasons, I have decided to adopt the approach, as set out in my amendment, that the decision to opt out is a matter for the benefiting spouse alone. He or she can do so by making a declaration which can be registered in the Land Registry or the Registry of Deeds. I am retaining the power to make regulations prescribing the form of declaration and in those regulations I shall ensure that the declarant is warned about the significance and importance of making it and the desirability of seeking independent legal advice. The provision will also apply as the existing text of section 7 does to persons contemplating marriage.
I trust the amendment will be acceptable to the committee on this basis. It is necessary to make corresponding provision for opting out of joint ownership of a mobile home which is a matrimonial home. The relevant amendments to section 11 are Amendment Nos. 62, 63 and 64.
I move amendment No. al to amendment No. 41:
al. In the first line of subsection (1) (a), after "matrimonial home", to insert "or a family home".
This is extremely complex in the context of the original provision. I am referring to the amendments now proposed by the Minister and the original amendments proposed by Opposition Deputies. I want to make my position as simple as possible. By and large I do not have any argument with the Minister's amendment. The one area of concern relates to the issue the Minister touched on, the spouse who opts out, be it by argeement, declaration or whatever, and who does not have legal advice.
Among these amendments we are talking about, I have tabled a couple which seek to ensure that a spouse has independent legal advice in the context of the spouse opting out of a joint interest provision. The Minister seems to think that by making that a requisite, he is making a wife in some way a dependent person or a chattel relating to ancient laws. I cannot understand that.
If the Minister was on this side of the House, bearing in mind his contributions in the Dáil in past years, he would be to the forefront in pressing for this sort of provision. The purpose is as follows. Where a family home or matrimonial home is required in theory lawyers explain in detail to their clients what is happening. However, theory and reality are often different. Often clients do not want to know the complex details of legal documentation. Some lawyers are slow to explain them and some people are slow to digest what they are being told. A husband may tell a wife that she has to sign a document on a certain day and not fully explain what it is about. He may tell his wife to go to the lawyer to sign a document to allow for the purchase of a house or go to the bank to sign a document because he wants to get a loan. There have been many incidents over the years where husbands or wives have signed documents without fully understanding the implications of what they had signed. On occasion, courts have held that because people voluntarily signed documents and did not avail of opportunities to get separate independent advice, they could not complain to the court about their default and seek to extricate themselves from the document to which they were signatories.
The fundamental intent of this legislation is to ensure that, by and large, family homes, matrimonial homes, are jointly owned by husbands and wives and that that reflects the marriage as a partnership. It should be the exception rather than the rule that when a home is being acquired, the ownership should not be in anything other than the names of the couple. This is normally in the interests of both a husband and a wife. In particular, if the husband is the primary income earner, it would be in the interest of the wife that she have a joint interest in the matrimonial home.
When people make arrangements about life it is important they are aware of the importance of what they are doing. I see no difficulty about the inclusion of provision in the legislation to the effect that where a spouse is voluntarily opting out of this arrangement he or she swears a simple declaration in the presence of a solicitor other than the one acting on behalf of the other spouse in the acquisition of a property. Before that declaration is sworn the solicitor before whom it was sworn should explain the meaning of the document the person is requested to sign. That does not involve huge legal fees or a great deal of time.
Solicitors who are Commissioners for Oaths on a daily basis have documents sworn in their presence and ask the people swearing the documents whether they understand the implications of the documents. It is important when someone is signing out of a joint ownership right in the family home they are aware that it is of importance to their future security. By going to the solicitor acting for the husband who is purchasing the house and who has, professionally, a vested interest in representing the husband because he is paying his fees, is not a way of signalling to a wife that she may be signing herself out of something which in the long term may be detrimental to her welfare. If, for example, under this legislation one signs off one's joint interest in the family home and in four or five years one's marriage breaks down, how can one make a case under the Judicial Separation Act that one should be given a joint interest in a house one had previously signed a document stating that one did not want a joint interest in? There should be a brief, but solemn event in which it is brought home to someone the importance of what they are doing. This will not happen by calling to the solicitor dealing with the conveyance or the purchase of the house for the husband and signing a document.
If the Mininster puts in place under the rules of this section standard forms of declaration and if someone swearing such a declaration must swear it before a solicitor who is a Commissioner for Oaths, other than the solicitor or the solicitor's firm dealing with the conveyance or purchase of a house and if the implications of what they are signing are explained to them, the expense involved would not be considerable. It is a protection against people not necessarily being bullied into doing things against their better judgment but being misled by their spouses into doing things they do not understand. On occasion, it might protect a spouse from a husband who is a bully or, indeed, a husband from a wife who is a bully. I do not see it as a problem.
I give the Minister an example in the context of adoption legislation and the document that a mother must sign prior to a final adoption order being made. The final consent document in which a declaration must be sworn confirming that she understands the consequence of what she is doing must be signed and sworn before an independent person. It is not usually complicated in the adoption area and does not give rise to great expense. There is no reason it should not apply here.
My amendment seeks to ensure that no one signs away their rights without having independent legal advice and there is no difficulty in that. In the context of signing a declaration after having it explained, the legal expenses one might incur will be so small compared, for example, to the cost of purchasing a house as to be almost irrelevant but it will ensure that a person will know what he or she is doing and understands it.
I have no problem with what the Minister said. There must be mechanisms to allow people to sign themselves out of these rights. Protection must be provided for the spouse who does not understand the implications of what they are signing or who may not fully appreciate the future consequences for them. Amendments which seek the right to separate legal advice for that spouse for such a declaration to be valid should be supported. I do not think what the Minister said in this regard has very much merit.
I support Deputy Shatter. The Minister's second draft is better than his first but that is not the end of the matter. We must look at the reality of ordinary people's experience of these kind of documents. I do not know whether the Minister has been made au fait with a very recent decision of the High Court in which a High Court judge held that the signature of a spouse, a woman in this case, on a Family Home Protection Act declaration and consent should be set aside on the basis that although she was a women of some education she was mistaken as to its contents. This declaration was made before a bank manager at the behest of her husband. As Deputy Shatter said she told the court that she was not quite clear as to what she was doing.
The court held that in a matter of such importance it was absolutely essential that a person shoud know exactly what they were doing and, though not in those terms, that in such circumstances independent legal advice would in future be necessary. Where a spouse signed a document in circumstances where the spouse could later say that he or she did not really understand the import of what they were doing the document could be set aside. This is a very serious matter because we are talking about a half share in the family home and, in most ordinary people's existence, a half share of the family wealth or the greatest asset in the family's set of assets. It is of great importance to get this legislation right.
The Minister said he is hostile to the proposal in Deputy Shatter's and the Progressive Democrat's amendment to the effect that independent legal advice should be forced on people where they do not need that. I have some sympathy with that view, forcing somebody to go at their own expense to a solicitor or barrister and forcing them to pay a bill to be advised when they understand absolutely what they are doing is somewhat hard to justify in some circumstances.
I agree that there is another way of getting around this which is to formalise the transaction to some extent and require that it should be carried out in circumstances which the law requires to be sufficiently formal to make it obvious to a person signing or making a declaration that they are taking a serious step and that the significance of that step is fully explained to them.
There are two broad alternatives. As the amendments suggest, one could make it mandatory to get independent legal advice. Alternatively, the person could be required to make the declaration before an independent person in circumstances where the procedure laid down by the statute required the independent person, first, to exclude from their presence any person who might be exercising undue influence over the spouse and, second to explain to them in clear and unequivocal language the exact consequences of what they are doing.
Does the Deputy mean a person other than the spouse's solicitor?
Yes.
A person who may not be a solicitor?
I thought it would be reasonable to say that a commissioner for oaths or a notary public should do it. Some of those declarations will be made abroad in certain circumstances and that would be a worth while development. If the Minister is worried about the fees why does he not provide that the Minister can specify maximum fees to be charged by a solicitor for a step of this kind? At present the rate for swearing an affidavit is £3 which is a relatively insignificant fee — the price of a drink in some hotels in Dublin — for formalising documents and authenticating them in a form that cannot easily be challenged later.
The Minister said in response that such a procedure might make it more difficult for a spouse who had been genuinely intimidated or put under duress to challenge the validity of the document in question. With respect that is inverting the argument. We want to ensure as far as possible that people do not sign the documents under duress rather than trying to remedy situations where duress has been exerted. The prime concern I wish to express is that people, particularly wives, should be protected adequately from being asked to make declarations under this section without a clear knowledge of what they are doing.
I guarantee the Minister that he would not have to go to a less well off section of this city to find people who do not have a clue of what this Bill is about. People who have never heard of a joint tenancy abound in Shrewsbury Road. People who do not know the difference between a tenancy in common and a joint tenancy represent 99 per cent of society. The consequences of this Bill, and of making a declaration under section 7 of it would be obscure to 99 per cent of people. Almost everybody who is not a practising lawyer — and some lawyers — would need to sit down and carefully read through this Bill to understand what they were doing.
In the real world the vast majority of spouses whose husbands or wives requested them to execute a declaration under this section would not know what they were doing, would not know the consequences of it or the implications for them. The vast majority of people would not understand it. If the Minister satisfies himself prescribing a set text for their signature to appear on, and even if he went through the motions of providing they have to sign a document which says that they should be independently legal advised as some documents now do, the Minister will find that a document with three little pencil crosses is presented to the average woman in this case and she is told to sign in certain places. We have all bought cars, we have all been presented with documents on occasion which have horrific conditions of sale on the obverse side and we are told by the car salesman to sign in certain places and 99 per cent of people, including myself, do precisely what we are asked. We assume that it is in order.
I cannot believe that.
We rely on the good faith of those we are dealing with and most women, if they went on the occasion of the purchase of their house before their husband's solicitor and he gave a document to the husband to sign and another document for the wife to sign telling them the documents were in relation to the family home, will trust both their spouse and their spouse's solicitor and will sign the document without taking adequate care to understand what it means. Bank guarantees are prime examples of people signing away significant rights and undertake significant obligations without thinking through what the consequences are.
It is not a huge imposition on somebody who wants to avail of a serious statutory power, to exclude the operation of an Act, to require that person to go through a formality, however basic, before signing away half his or her interest in the major family asset. I thought it would be easy to propose an amendment saying a declaration under section 7 should be made before a Commissioner for Oaths or before a Notary Public in the absence of the spouse in whose favour it is made, or of any person connected with that spouse and in such other manner or circumstances as the Minister may by order provide for the purpose of this section. The Minister is rightly arrogating to himself, the power under statute to determine the form that such a declaration should take. If he is entitled to specify the form why should he not also take care to put some minimal protection in relation to the circumstances in which one of these declarations is made?
Where we are extinguishing an equitable estate of a spouse in the family home, it will prove of great significance when this statute is operated as to when precisely and for what purpose a particular document was made. For instance, the dating of a wife's signature may or may not affect the rights of third parties who have similar equitable rights over a family home. If one post-dates or pre-dates a document of this kind it can affect the rights of others. Therefore, society has an interest in having a clear date upon which the equitable estate conferred in this Bill was actually vested in a spouse or ceased to be vested in that spouse. It will be of significance as time goes on that every declaration made under section 7 and its consequences should commence at a particular time.
It should be known in retrospect when you look at a document which has been duly notarised by a Commissioner for Oaths that this document was made on a specific day and not on a day which conveniently pre-dates some other event, enabling people to escape liability. For example, a judgment creditor might seek to attach half an interest in a family home. It might be in the interest of a husband and wife to back-date an agreement or a declaration to avoid a certain consequence. The capacity of people to be devious and to suit themselves in relation to these documents is well known. It is, therefore, desirable that there be a formal process for somebody who wishes to avail of this section.
Lastly, there is the issue of holding documents in escrow. A spouse may say he or she did sign a document because the couple were going to do certain acts. The clear understanding was that if they did not do those things the document would be destroyed. It was a conditional signature for a particular event which never happened. Therefore, the spouse will argue he or she should not be bound by it when claiming a half interest in the family home. Legal cases arise in such circumstances.
This requires more thought. We are creating a legal minefield if we allow the informal and sloppy procedure of somebody producing a document many years later and saying the other spouse had signed it years ago. This applies particularly when the spouse is dead. It is wrong to allow such an important document to be executed in totally informal terms.
As Deputy Shatter said, we are trying to protect people. Since 99 per cent of people could not understand this Act and will never understand the difference between a joint tenancy and a tenancy in common or their precise rights under this Act, we need to establish formalities for people who choose to sign away their rights under section 7.
I share some of the concerns expressed by my two colleagues. Thought should be given to incorporating some form of safeguard against abuses, legal or illegal. In one case a local authority house in joint ownership was presented to a local authority as having being transferred or in the process of being transferred from one spouse to the other. By coincidence I knew the person concerned had had a stroke and was in hospital. She was totally paralysed and would certainly not understand what she was supposed to have signed. When I went further I discovered that she could not have and did not sign it. It had been signed for her by some other person. It was fortunate that I happened to know that person.
When men or women sign statutory documents somebody should at least be in a position to identify the person concerned. Peace Commissioners, for instance, do not get much credit for what they do but at least they know local people who normally go to them to get a witness for a signature.
Apart from the legalities, the signatures should not be witnessed by a person in a solicitor's office. People in practice will agree they sign probably hundreds of documents without even knowing the witnesses, at the rate of a dozen a week and perhaps more in some cases.
Many thousands of houses have been bought from local authorities. Perhaps there are more than the original category of private houses. Where one spouse is transferring interest to the other the local authority law agent should explain to the person opting out what he or she is doing and the result of that action. The charge could be applied to the person benefiting from the transfer. That independent person would be acting not only on behalf of the person opting out who could be illiterate but also on behalf of the local authority. It would have an interest because property can only be transferred by order of the county manager under certain circumstances, for example if the person acquiring the interest is in need of housing.
Genuine fears have been expressed and some form of certification, identification and above all explanation to the person is required. Perhaps that could best be done by regulation under the relevant section. The Minister has tried to come to grips with it but I support the points already made.
This amendment is one of the most important that has been put forward. Deputy Shatter spoke on his amendment and Deputy Harney and I have tabled a similar one. It is important because it concerns the waiving of the statutory right given in this legislation. If we are giving a right by statute we should be careful about whether and how it is waived.
The Bill has been carefully drafted so that it is gender neutral. The reality is that the people that we are trying to benefit through this legislation are mainly women who are economically dependent on their spouses and who, the courts have ruled to date, do not fall into a category of people who deserve to have an equitable interest in the matrimonial home because they have not contributed in a monetary sense to the purchase of that house. Those are very likely to be the type of people who need independent legal advice because of their economic dependence on their spouses. Many women defer to their husbands in matters regarding the purchase and sale of property and all the legal and administrative matters related to running a home.
We have to be very careful that adequate protection is given to those women who might be, at the very worst, unduly influenced to forego their right or, at the very least, might be ignorant or immature or just not fully aware of what is going on in their legal relations with their husband or in the contract of marriage. I welcome the safeguard of having a section in the Act, which provides that before this statutory right can be waived, independent legal advice should be given to the spouse opting out.
Deputy McDowell pointed out a few cases. Practitioners have referred me to several cases taken on this point under the Family Home Protection Act, 1976 where a wife, who had signed a consent form, challenged that signature when the banks went to foreclose on the sale of a house. In some cases the wife has been allowed to disassociate herself from that signature because she did not have the benefit of legal advice. It is important to accept that many women are in tyrannical marriages where they are told what to do and are treated like domestic servants in their house. They have no economic power, and are not involved in any material transactions related to the home. It is specifically that category of women that we are trying to target in this legislation. Many of them feel powerless and over the years have opted out of a whole range of transactions. They may have signed many documents the meaning of which they were not fully aware.
I agree with Deputy McDowell that it should not be beyond the capability of the Minister to devise some form of inexpensive and straightforward transaction which would guarantee that women are not duped out of this very important statutory right. It would be folly when we are making this welcome change in the law to recognise the equal status of women within a marriage if we did not provide that extra protection.
Section 7 is probably next in importance to section 4. I share many of the concerns other Deputies have expressed on this section. It is too woolly in how it defines and describes the declaration. Section 4 states the right of each spouse to 50 per cent of the matrimonial home. Section 7 declares that a spouse may opt out of that very important right. It is a very serious matter. We need to set it into context. Most property is owned by men and a significantly smaller amount is owned by women. While we like to think that marriages are equal partnerships, there are many marriages — perhaps a majority — which are not in that happy state.
If it were generally the case that property was equally shared, that marriages were generally based on equality and that everything in the home was satisfactory, then the Minister would be perfectly justified in what he is saying. That is not the case. There are all sorts of problems and attitudes related to marriage that are difficult to overcome and which negatively affect women. Marriage is a personal relationship and there are all sorts of eccentricities and foibles for which allowance must be made. At the time of marriage a commitment could be made by one spouse to give up her right to the matrimonial home to the person she is going to marry. Marriage is not the time of one's life when sanity prevails.
Grounds for annulment.
It is a time when spouses might be open to persuasion. We need to be conscious that the stars in the eyes may blind one to the small print. This section needs to be sorted out. We are saying to spouses that if they do not want to take up this right to own 50 per cent of the matrimonial home they can opt out. We need to remember we are talking about property, something of value that somebody is sacrificing. It is very easy to bamboozle somebody one is close to where there is trust and a personal relationship. If somebody is making this declaration it needs to be formal and to be informed. Not enough attention is paid to it in this Bill. We need to look at the advice the spouse is getting, the shape that declaration takes and how clearly the declaration is framed so that the person knows precisely what he or she is doing.
The vast majority of people do not know what this Bill is about. Many people here are not 100 per cent certain what this Bill is about. We know what the nuts and bolts are, but the complexities of the subclauses and subsections are mind-boggling. They have a significance if one is giving up something of value. A home is not a small thing; it is probably the biggest purchase any married couple will make. A decision to cede to one's spouse one's right to that home is of enormous consequence and should not be underestimated. The spouse who is receiving the gift, who is being given 50 per cent of the matrimonial home, should make sure that the other spouse is given independent legal advice and should pay for it. Otherwise, it would be necessary to reform the legal aid system to make sure people could avail of it.
My amendment covers the same ground, that is the question of regulations with regard to the declaration. The Minister is saying that he may introduce regulations. My amendment provides that he shall. It is important that the regulations govern precisely the form the declaration takes. What is in the Bill is not sufficient. Either the amendment is going to be amended again or else the regulations will determine all the detail. I will be listening with interest, because I am not a lawyer, to the various ways this can be done. It seems to be a fairly simple matter to accommodate. There is quite often a substantial time loss between the passing of a Bill and the introduction of regulations. I would be unhappy about leaving regulations to sort out any of the woolliness if that is going to be the experience. If it is the regulations which will determine the precise form the declaration takes, the regulations should be introduced immediately on the passing of the Bill and it should be crystal clear from the start.
It is complex legislation but it is also a personal matter. People can feel emotionally blackmailed and do certain things because of their personal feelings for the man or woman they have married. We do not want, in any way, to exploit that type of emotional bond. That is what this does; it is making it open and easy for somebody to take advantage of another human being. One of the reasons we have marriages that are unequal is because we have enabled that kind of pressure and dominance.
Essentially, the Bill is good; it represents progress; establishes a right and tries to change an imbalance. However, it would be very naive if we did not take on board the difficulty overall in ensuring exact equality in marriage. If we are to make progress and ensure that the old habits are not used against a spouse, as they can, the Bill has to be much sharper and clearer. In 99 per cent of cases this will concern women and any woman signing away the biggest piece of property she will ever own, and in most cases the thing of greatest financial value and worth she will ever own, will have to be 100 per cent certain about what she is doing.
When the Family Home Protection Act, 1976 was passed, the belief was that wives would be protected. In my experience, on a number of occasions wives have signed away their rights to the family home. This happened due to a lack of information and the trust they had in their spouse at that time. Years later, these wives were left on their own. I have come across some particularly sad cases and they were all due to a lack of information. Years after Bills and other measures are introduced people, especially women, are not aware of their rights and housewives who trust people find themselves left in a serious situation. We should be examining this to ensure that any loophole is plugged and that information be provided before the people take any steps. The family home is the most expensive and the one of most benefit to any couple. It is important that neither partner would lose out in a transaction. Therefore, this is important legislation.
I share the concerns expressed by Members regarding this section which requires much consideration by the Minister. The essence of this Bill is protection yet, at this stage, we are dealing with a section where that protection can be wiped out with the stroke of a pen. We all realise that if that step is taken, it will be difficult to get it back, if ever.
What we are discussing is, in fact, happening in reality. In many cases the banks are asking wives in particular to sign away their rights to the family home to secure a loan to develop the family farm or a business. Like many of my colleagues, I have met women who found themselves in this situation. Out of a sense of loyalty, they signed away their right. I deplore any financial institution who puts that type of pressure on the spouse; it is most unfair. Women, in particular, find themselves in the invidious situation where they have to make a decision regarding their self interest or, perhaps, loyalty to their husband.
Women have expressed their concern to me, as indeed have financial consultants working for clients who have found that the spouse of the client was put in, what I would call, an unbearable and unacceptable position. It is happening and we should, in this Bill, which I consider to be one of protection, ensure that if people want to sign away their rights, there is a system in place that ensures they are informed and are not doing it under pressure.
People will be uninformed and because we have a tradition and a habit of signing documents that are put in front of us, cases will emerge where somebody will sign away the right to the family home offered by this Bill without having fully understood the huge consequences of that decision. Not everybody possesses the same degree of independence of mind. People may be submissive by nature and do anything for, what we call, a quiet life. As legislators we have to protect those who, because of their personal make-up, will not have the confidence or courage to do something for themselves. Deputies may smile about that but there are many people who would prefer to do what they are asked rather than enter a battle where their loyalty could be questioned and where they could be accused of putting self interst first.
It is for those reasons that it is most important that any person who decides to sign away the right which this Bill confers on them must be informed of the decision. There must be an independent witness present who can speak with knowledge of the circumstances which prevailed at the time the decision was taken. In many cases throughout life we have to operate on trust. Unfortunately circumstances change, people change and a decision that might have seemed correct at that time might turn out to be the wrong decision because circumstances could change to such an extent that all trust has gone.
It is important that our views regarding the lack of protection in this section should be examined with a great degree of care by the Minister. It would be a pity if we were to spend time teasing out the details of a Bill that will give the necessary protection and yet, perhaps, omit to provide protection in a section that could have alarming consequences for people who sign away their rights. I hope the Minister will consider the examples that have been put forward today. It is happening; we are not speculating about what may happen. There are many cases where people have been forced to sign away their right to the family home in various circumstances.
I hope that the views and concerns expressed in this section will result in an acceptance of the amendments put forward so that legislation will not only provide the protection we all want but ensure that that protection is not signed away, not only through lack of knowledge but through lack of support.
Does the section provide that these documents should be free from stamp duty?
The Revenue Commissioners are examing the situation but the intention is that there should be no stamp duty.
Regarding the needs of the particular amendments the committee is considering today, having heard Deputy McDowell's contribution I wonder whether we need to introduce a law to compel him to get legal advice before he buys his next motor car.
I am just as concerned as the Members that the intent and purport of this Bill should be brought into play and made effective, as the Oireachtas intends it to be. There is an impression that this is a matter of bringing a declaration to a Commissioner of Oaths, paying £3 and that that is the end of the matter. That is not what is being discussed at this committee. Commissioners who receive the £3 are not involved in advice or in studying the document. They do not ensure that one has read the documents or that the contents are true. It is not a £3 or a £50 fee, it is more.
What are we doing in this Bill? We are introducing a provision which says that on the passing of and coming into operation of section 4 of this Bill, the beneficial ownership in the matrimonial home automatically vests in both spouses and the benefiting spouse may opt out. Let us say that my matrimonial home is in my wife's name and section 4 comes into play. The law now says that the matrimonial home which was in my wife's name is, without my asking, coming into my name now. However, I can opt out. Is the law to say to me then that I may not opt out by law unless I first give £100 to a solicitor?
I would hate to take money from my former colleagues in the solicitors' profession and they would not thank me for doing so. The purpose of the amendments is to say to adult persons who are not disabled or under age, that by law they are not allowed to take a legal step unless they give £100 to a solicitor. They might not be able to afford £100 or might not want to pay it.
The amendments say that you may not opt out without getting independent legal advice.
What about the Commissioner for Oaths?
The Commissioner for Oaths has no power to give advice. We do not get advice from the legal profession for £3.
(Interruptions.)
With respect, the Minister is arguing a case which is most unusual. We are talking about the normal case where spouses, day in and day out, sign away their rights under the Family Home Protection Act without any advice. The Minister is saying they should have less protection signing away their principal asset than somebody buying a plastic bucket or broom from a door to door salesman on a consumer credit basis where they have a cooling off period under present law.
It is not a question of less protection. The Family Home Protection Act has a different base. A person's spouse is entitled to say that he or she does not want a joint interest in the matrimonial home.
We are not saying that for a share of the Minister's house he will have to pay £100.
There could be many reasons a person would not want it.
The Minister is stating a case that has not been expressed. For example, in my case I am saying that the other spouse is being handed a gift of 50 per cent of the matrimonial home. To have to pay £100 from that is peanuts and we are not demanding that a spouse who is giving up the right has to pay for it.
If they have any doubt about their position it would be money well spent. Any person in that position who is doubtful about what the document meant would be well advised to get independent legal advice. There should be the maximum possible element of formality about that. However, to say that they may not do it without getting independent legal advice is a new concept.
What about the proposal Deputy Shatter and myself put foward? To say I know about my entitlement and I disregard it and I am signing anyway is fine. However, there is a difference between a formal procedure and paying £100 to a solicitor.
The amendment before us states that £100 should be paid to a solicitor. I agree with the Deputy——
That is not the only amendment, we are talking about all the amendments.
We are saying that the Minister's section has no protection.
My section has an appreciable element of formality. It is to be done by declaration and I am allocating the powers to me to bring in the regulations setting up the formality of the document. It is my intention, for example, to specify that there must be a warning on the document which should state:
"This is an important document. If you complete it and sign it you will lose your entitlement to your half share of your matrimonial home. You are urged, therefore, if you have any doubt about what you are doing, to get independent legal advice".
I have had many examples of so-called independent legal advice. I have had telephone calls from solicitors over the years stating that a client is in their office seeking independent legal advice. The reply was to send her over because she needs independent advice. The woman would come in and look at a voluntary disposition of one form or another, and it would be quite clear that her mind was made up about the issue before she came. This was a formality. She was not applying her mind to what I was saying, she had quite clearly been primed beforehand to sign the document. I did not know whether she was operating under duress but she could well have been.
If you were meant to be advising her you could have asked her.
She definitely wanted to sign it. If that woman had been operating under duress, which was a possibility, and if the time came that she wished to set aside the document, which was witnessed by an independent solicitor, I do not think she would have been successful had she gone to court in the instance cited by Deputy McDowell. A court will not have much sympathy with somebody claiming duress when the document is witnessed by a solicitor. If there was duress and the document was not witnessed by a solicitor, she would probably be sucessful if she established the case cited by Deputy McDowell.
It may be counter productive to insist on independent legal advice, having regard to the way it operates. Duress might be applied to the woman by telling her to go to particular solicitors and sign as they indicate, thereby negating her possible rights.
It comes back to the question as to whether it is reasonable or appropriate to make it a compulsory factor that a person who wishes to opt out of this half share should not be allowed to do so unless they go to an independent solicitor and pay an appreciable fee, perhaps £100 or more. That is the dilemma. We certainly have to import the maximum possible formality into the transaction and have a highlighted warning on the document. The document comes into play only when it is registered under the amended section 7. That is the situation as I see it.
Deputy Taylor, being the good advocate that he is, has made the most extreme and disingenuous case one could possibly make against this proposal. It sounds to me as if the warning on the document would be about as effective as the compulsory Government health warning on a packet of cigarettes. For the person who receives the document with the warning on it and ignores it——
There is a limit to what we can do to protect people from themselves.
Ignoring the warning might be as dangerous, in the context of their future security, as ignoring the warning on a packet of cigarettes. I find all this a little incongruous. The Minister appreciates the need to ensure that people who sign out of rights and protections are given the opportunity to be aware of what they are doing. I reject the suggestion that if you require someone to get independent legal advice before they sign away their rights it could be inimical to them later on. I assume the intention is that if people sign away their rights and give up the protection the Act prescribes, it is intended that the document they sign would be regarded as reliable and valid, not only in respect of the relationship between the spouses but when it comes to any future dealings with the matrimonial home by third parties. This arrangement is not only about protecting the interests of spouses but it is also relevant to third parties who may deal with the home-owning spouse and the security of that home in the future, and who may rely on declarations concluded under this section to assume that the spouse who has waived his or her rights will not come back later and claim ownership rights.
The image of requiring large proportions of the population to wave £100 notes in the direction of solicitors may appeal to certain prejudices that some people in this House tend to pander to, assuming that the legal profession generally is corrupt. The Minister is not renowned for pandering to that sort of taste but it is demeaning the importance of what is proposed here.
Deputy McManus was right when she said that spoues may be giving up a substantial and valuable interest. The other spouse will substantially benefit from their signing away their rights or completing a declaration. If the other spouse wants to make sure that the declaration is legally valid and unchallengeable, he or she has a vested interest in ensuring that the spouse signing away the rights does so with full knowledge and understanding. The spouse who is gaining a substantial asset has a a large incentive to meet the small legal expense of ensuring that their marital partner is properly and independently advised.
The Minister gave the example of his being phoned up for independent advice and a client arriving in his office who had already made up their mind. If someone comes into a lawyer's office looking for independent advice and has already made up their mind, it is the lawyer's job to set out clearly the legal position and to say it is important to understand the information. If that person does understand but has made up their mind and nevertheless goes ahead and makes decisions which may be inimical to their personal welfare, so be it. They have made the choice and that is it.
There may be others who come along for independent legal advice thinking they have made up their mind and then having obtained that advice discover that what they believed to be the situation is in reality quite different. There is an example of this in the adoption area, where before one can sign the final consent one has to complete a document which confirms that one understands the nature of what one is doing and its implications.
Amendment No. 1a is an amendment to amendment No. 41 and seeks to include in the section the following:
(b) a declaration made under this section shall not be valid unless the party making such declaration has first obtained independent legal advice.
I would see that amendment as seeking to ensure that someone who is throwing away a protection and right that the Oireachtas has given them fully understands what they are doing. The Minister and I have been practising solicitors for many years. I do not know whether solicitors would now charge £25, £100 or £150 for giving such advice.
However, anyone who signs away their rights in a family home, whether it is a relatively modest home, a home they are purchasing from the local authority or a more luxurious residence, is signing away an interest worth thousands of pounds. We are not talking about a small coffee table in the corner of their house. We are talking about, even in the case of modest residences and homes, assets worth thousands of pounds.
It might not be a heavily encumbered dwelling.
Yes, there are few dwellings which are so encumbered and mortgaged as to have no value. If you sign away an asset worth £10,000 there is a danger you may sign away your interests without appreciating or understanding what you are signing. If there is a danger you might sign away future security and if the signing has a value of £5,000 or £10,000, even if it cost £100 to ensure that you fully understood what you were doing, it would be a way of ensuring people did not sign away rights and protections that the Oireachtas extends to them.
I do not buy the argument that it is imposing a huge difficulty on a person who intends to sign away rights to say to them that if they intend to sign a document and make it valid they must have independent legal advice. This means people know what they are doing. If they get independent legal advice it means they cannot, in ten years' time, pretend they did not know what they were doing.
There is no more mystery about this than about some of the other documentation we all have to sign and which, for example, the State imposes on us to sign. The number of people who return complicated income tax self-assessment documentation without an accountant's advice are few and far between. We are told that if we do not do it properly we will go to jail. It seems that the State requires a large proportion of the population to spend more than £100 a year ensuring that they pay a good portion of their salary to the State, never mind signing away their assets.
The Minister's objection to this is exaggerated. It is not in the context of what this legislation is seeking to do. It is giving it a particular perspective which might appeal to some sections of the community. It could be seen as suggesting that this type of requirement is looking for work for the legal profession. However, in reality it is seeking to ensure that people who sign away their rights are well informed, know what they are doing and that when they do it, they cannot complain later on that they did not know what they were doing and seek to have it set aside.
It is important to protect the rights of women, in particular, who will be put in this position, some of whom will be put under pressure to sign away their rights. It is important to protect third parties and to ensure that when people deal with these types of declarations in the context of buying and selling family homes, other expenses are not unnecessarily incurred by the seller or the purchaser of the family home through their lawyers seeking to determine the validity of declarations. Otherwise, there will be a problem. When declarations of this nature are produced with regard to the sale of the family home, there will be additional expenses because some lawyers will take the view that one must look behind the declaration. If the declaration is five years old, one will perhaps have to ask the spouse who signed it to sign another declaration saying he or she still agrees with it and understood what they were doing. It should be dealt with when it is signed.
My amendment ensures that people do not throw away the protections this Bill is designed to give them. By and large, as other Deputies said, it would provide protection for a large number of women who may find themselves under pressure from their husbands, following the enactment of this Bill, to sign away their rights. They could find themselves in the office of their husband's solicitors with forms placed in front of them and will, for the sake of a quiet life, sign away their rights. Three or four years later they could discover that because their marriage has got into further difficulties, they have signed away something important. By saying they must obtain independent legal advice it means they can be counselled by someone who is not their husband's lawyer. They can see someone on their own, without having a spouse putting pressure on them and, perhaps, bullying them to do something against their better judgment. Independent legal advice in this circumstance also means that one is seen independently. A person's husband is not sitting beside her telling her what she must do.
I can envisage a number of instances where husbands — perhaps it is happening today following the publicty surrounding the processing of this Bill in the Oireachtas — will try to bring their wives into solicitors' offices, following the passage of this Bill. Perhaps these wives are bullied and are trying to keep their marriage together. They do not want to upset the apple cart any further and they will be browbeaten into signing a declaration. It might be good to force them to get independent legal advice from a solicitor so that some of the pressure they are under is lifted temporarily and they can reassess their situation. I wish to put this amendment to a vote.
I listened carefully to the Minister's arguments and I found them unconvincing when they were not amusing. The inadequacy of this section is clear. It is not only a point raised for the sake of opposition from this side of the House. It is a point which has been echoed by the only other speaker from the Government parties here today. If there was a meeting of the Dáil in which there was a free vote on the issue, I have no doubt the arguments would be carried by those in favour of some form of protection.
The Minister said, in particular, that the two amendments put down by the Progressive Democrats and Deputy Shatter involve people in unnecessary expense. If that is his view, that mandatory independent advice is an unnecessary interference with ordinary people's rights. However, there is a middle way. There is a formal procedure whereby you must make the declaration before somebody is obliged to say that you are entitled to independent legal advice. However, the Minister will photocopy the document which will be available at King's Law Stationers and made it available to people to show to their wives on a Friday evening when they are watching "The Late Late Show". They will sign the document and they will then have to go to court and spend thousands of pounds to reverse it and have it declared invalid. The onus is on the wife to invalidate this document.
If the Minister wants to use what I, with respect and with no sense of malice, describe as specious arguments against protections because they rob people of later defences, what he is doing is casting women, who will be asked to sign these documents in highly informal circumstances, without any explanation offered by their husband as to the reason this document must be signed and then placed in the bottom drawer of the house and left there until it is brought to the Registry of Deeds. Women will sign these documents, the explanations as to why they should will be varied. Men will frequently tell their wives they have to raise a loan, or establish a joint partnership, etc. and the wife in those circumstances will sign the document. Three weeks later that great project will have fallen through, but the document will still be signed. It will not appear anywhere on the document, as drafted by the Minister, that it was signed for a particular purpose, or in particular circumstances, or that the wife thought it was confined to a particular purpose — the explanation given by her husband. These things will not appear on the Minister's standard form document, but they will be of the essence in determining whether that wife has validly surrendered half the value of the family home to her husband.
I remind the Minister of the emerging case law in relation to people signing guarantees. Many spouses sign guarantees for their husbands or wives business affairs. In Britain — the courts here have followed British decisions in recent times — where a wife signs herself as a guarantor of her husband's business affairs there is a presumption of undue influence in those circumstances and that the spouse should have received independent legal advice. Any bank which accepts a guarantee brought in by a husband from his wife to support his business ventures, faces a presumption that the document is, in effect, invalid. That is the present state of play between husbands and wives in Britain and Ireland under "judge made" law.
What the Minister is saying is that a declaration may be executed by a wife with no advice and may be brought to the Registry of Deeds. Once it is brought to the Registry of Deeds and registered the home ceases to be one to which section 4 applies. Unless the wife acts quickly or by some fortuitous chance she manages to get her act together to try to unravel, at great expense, what has happened in the Registry of Deeds, she is in the position that a mortgage institution, a bank or a judgment creditor may grab the property or her interest in it in those circumstances. That is what is going to happen.
I ask the Minister not to consider this as a dispute between his and the point of view of Deputies Shatter, Harney and O'Donnell on the issue of whether there should be mandatory independent legal advice. There is much merit in what Deputy Shatter and I have put forward. There must be some formality to this issue. One cannot produce a document, a photocopy of a declaration prepared by the Minister, the standard form document in these circumstances, and place it in front of one's spouse and say that is the half interest of the house surrendered.
I ask the Minister to reconsider whether, in these circumstances, a procedure can be put in place where one may go before a Commissioner for Oaths. Deputy Bell mentioned a peace commissioner. However, a peace commissioner would probably suffer from the same infirmity as 99 per cent of people because they would not know the difference between a joint tenancy and a tenancy in common and would be unable to explain to the spouse precisely what he or she was doing. There should be a procedure where one may go to someone without one's spouse, who is capable of explaining in five or ten sentences what one is doing and to advise the person seeking independent legal advice if they have any doubt before signing.
If the declaration contained an obligation on a Commissioner for Oaths to confirm that he had read and explained it to the wife in simple language, which the Minister could devise, it would be advantageous and a safeguard for a spouse.
Under consumer credit legislation if the Encyclopedia Britannica salesman comes to one's door and one signs an order form for it, one is entitled to a cooling off period to reconsider and to cancel at no cost. A door-to-door salesman faces that type of formality and must had over a contract stating that. The least that can be done in respect of a spouse is to offer them the same protection from a coercive husband that any man or woman enjoys from a door-to-door salesman who is selling doubtful products on a wet afternoon.
The issue in relation to independent legal advice has been well made and I could not improve on it. I refer to some of the related amendments. The Minister under this section may make regulations. It is clear from what the Minister said in response to the arguments made that he plans to make regulations because this legislation could not be passed without a firm commitment to make regulations in relation to independent legal advice and how the final legal stages of this process would be initiated. I am not sure whether the Minister has indicated his intention to make regulations or whether he is inclined to accept that because I was not present when the amendment was discussed. It is extraordinary, as other Members said, that under this section which contracts one out of a major entitlement, the protection offered is less than contracting out or a declaration made under the Family Home Protection Act where there is, as I understand, a practice of going before a Commissioner for Oaths where limited questions are put to the individual.
The Minister indicated his willingness to concede that. I hope he accepts that amendment and the proposal for independent legal advice, although he is less disposed to do that. In the context of concessions being considered, it is extraordinary that we are proposing a procedure that is less onerous than the limited protection of the Family Home Protection Act. It should be closer to the type of consideration in the legislation Deputy Shatter referred to, the adoption Acts, where care is taken to ensure that consent is given and is informed.
The Minister, and the Department, must ensure that great care is taken with this section to ensure that that is what we achieve at the end of the day. We cannot do this well without independent legal advice. There is a need for more clarity, formality and a legal setting in which this consent is to be registered and what form it is to take.
On a point of order, it should be noted that if the Minister's amendment is accepted the other amendments fall because they relate to the original section 7.
I do not think that is correct.
The first decision will be on Deputy Shatter's amendment.
I wish to make some points in response to the Minister's statement. I understood it was a weak argumen if one argued from the particular to the general. In this case the Minister has argued from an unusual particular to the general when he used himself as an example. He asked, if this Bill was enacted, and his wife owned a house how it would affect him? First, he is a man and, secondly, he is a lawyer. The number of people in that situation would be so miniscule that it is irrelevant to use—
Approximately 1,800.
I am referring to the number whose wives have 100 per cent ownership of the matrimonial home. That is the uniqueness of this case. The case the Minister cites is so unusual I would disregard it. It is surprising that he is not taking on board the points made in relation to how men and woman negotiate their lives in the marital contract and how often it is an unequal negotiation because the property often belongs to the man. That sets up an inherent advantage. If this Bill is to set the balance right, where a woman decides, is encouraged or is intimidated into signing a document giving up her right, she must be informed as to what she is doing. It is not easy for a lay person to understand what one is doing when one is given a form to sign. If it is not important for an informed decision to be made, let us do nothing, let us move on to the next section.
Most people believe it is important and we need to deal with it. We should encourage joint ownership. The Minister said it would be wrong to insist that someone who makes this choice should seek independent legal advice. That may be the price we have to pay to protect the rights of many people and it is a relatively small price. I speak as a person who is no great admirer of solicitors. I suspect Deputy Shatter included me when he referred to people who do not bring out paeans of praise towards solicitors. I have difficulties with solicitors. Very often they are brought in to dealings when this is unnecessary. I also recognise that solicitors have their uses.
Has the Deputy told former Deputy McCartan that?
I understand that when selling a house or making a will a solicitor must be consulted. Is the Minister saying that I should make a will without the help of a solicitor on the basis that I am an adult, an independent human being? Solicitors have this knowledge, couched in language that is inaccessible to the rest of us.
It is advisable that a person should but should a person be compelled to do so by law?
If you are giving up a right that you have won with great difficulty and after considerable delay, if you are in a situation where that right is only in its infancy and can be abused and taken away relatively easily because of the unequal balance which still exists between men and women, consultation with a solicitor is a form of protection that most women would appreciate because of the knowledge solicitors have in this area.
My second point — it is one that does not relate to property but to other difficulties that arise within marriage — is that introducing a third party can often be a useful exercise because it means that the injured party or the person who is being exploited can defer to somebody outside the relationship. The arrangement is formalised so that the person who is taking advantage of the woman — let us say the husband — is not in a position to get away with whatever he likes because there is this third party to defer to.
I have noticed — I have much experience although it is not directly relevant to this — in relation to women who are violently attacked by their husbands, the men often cease to be violent towards their wives once they know a third party is involved. It does not matter whether the third party happens to be a solicitor or not. A third party formalises the negotiation, because it is emphasising that the negotiation is not between spouses but that somebody else will be involved at some stage even if it is a matter of one spouse sitting down for five minutes to hear what rights she or he has. That alters the relationship as regards this property loss, and it is a loss of property.
I wish to reinforce the point I made in regard to regulations. The regulations have not been discussed. The Minister has not said whether he will introduce regulations or whether he accepts that it is of such significance and importance that regulations should be brought in immediately on the passing of the Bill. Would the Minister accept that and if he does, can he see a way under regulations to satisfy our requirements? I find it hard to believe that the Minister is not accepting our arguments. He may disagree on the question of whether it should be compulsory to have independent legal advice but the argument is one the Minister should accept. If he accepts it, and does not accept the proposal of an independent legal advice, how will he deal with that problem?
We have had a long debate on this issue. I assure Deputy McManus that it is certainly my intention to introduce the regulations quickly. I also assure Deputy McDowell that in no way do I regard the discussion this afternoon as a confrontation between myself, Deputy Shatter and him. On the contrary, I regard the debate as important and constructive and an airing of the views of people who have experience in these matters. I value all the contributions that have been made. That is the purpose of a Committee Stage debate, to have an informed, relaxed discussion on important issues to try to get the best possible legislation taking all factors into account. I had hoped, I must admit, to have been able to convince the committee that my view of this was correct. I do not seem to have been quite successful in that.
I wish to make a number of points on the most recent contributions. Some Deputies made the suggestion or possibility that the fee would be paid by the husband in the type of case we were talking about. If that were the case, I would not regard the advice being given as independent legal advice if the fee was being paid by the husband.
On the question of why somebody might want to opt out, there are many modest dwellings here for which loans were taken out with the Housing Finance Agency where the amount of the loan may well be in excess of the value of the house. It could be that a person would want to opt out because a joint tenancy with such a debt on it might have a negative effect and such a person would be compelled under the terms of the amendment to pay a solicitor to avoid what would be an obligation imposed on them by law.
I had hoped to convince the committee about the reasonableness of my views on this. I have not succeeded in doing so. If the amendments are withdrawn, I am prepared to consider this matter further before Report Stage in the light of what has been said and, in particular, the suggestion made by Deputy McDowell. Having some provision about the availability of legal advice and so on might be a possible compromise to meet the needs of the position. I would certainly like to consider that suggestion closely.
If this amendment did find its way into the legislation it would certainly be no panacea to the objective we all have, to protect spouses and ensure that they know what they are about and that if they want the benefit of this Bill they have it and retain it. It must be remembered that section 7, and the amendment to it, refers only to the opt-out provision. In other words, it would still be open to the husband if he was going to pressure his wife simply to sign a straight conveyance of the half share and not deal with it by way of opt out. The section, and the amendment, would not apply to that situation, confined as it is to the opt-out. However, if the amendments are withdrawn I will re-examine this matter before Report Stage in the light of the contributions made.
This is a very serious amendment and the Minister is only going part of the way with us. To clarify matters, I intend to press amendment No. 1a. If that amendment is defeated it does not stop the Minister considering the position between now and Report Stage. I want to lay down a very serious marker on this.
I am disappointed that the Minister is not accepting this because it is quite clear from contributions by Government and Opposition Deputies that they are of one mind on this point. When this opt-out clause arises warning bells should ring. There should be a presumption that something is amiss when someone tries to opt-out of a joint share in the family home. If there is no provision for those warning bells to at least be turned off by the benefit of legal advice, there is a fundamental flaw in this legislation. We have tabled amendments similar to Deputy Shatter's and therefore, we would be happy to support him if he presses his amendment.
I am only pressing amendment No. 1a which is the amendment to subsection (1) after paragraph (a).
Amendment No. a1 to amendment No. 41, by leave, withdrawn.
Amendment No. 1 to amendment No. 41 not moved.
Amendment No. ala to amendment No. 41 not moved.
I move amendment No. 1 a to amendment No. 41:
In subsection (1), after paragraph (a), to insert the following:
"(b) A declaration made under this section shall not be valid unless the party making such declaration has first obtained independent legal advice.".
Amendment put.
The Select Committee divided: Tá, 11; Níl, 13.
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Tá |
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Mrs T. Ahearn. |
Mr. J. Higgins. |
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Mr. P. Bradford. |
Mr. M. McDowell. |
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Mr. M. Creed. |
Mr. P. McGrath. |
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Ms F. Fitzgerald. |
Ms L. McManus. |
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Miss M. Flaherty. |
Ms L. O'Donnell. |
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Mr. A. Shatter. |
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Níl |
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Mr. N. Ahern. |
Mrs. B. Moynihan-Croinin. |
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Mr. M. Bell. |
Mr. E. Ó Cuív. |
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Mr. M. Brennan. |
Mr. R. O'Hanlon. |
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Mr. T. Broughan. |
Mr. S. Pattison. |
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Mr. J. Leonard. |
Ms R. Shortall. |
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Mr. T. Moffatt. |
Miss M. Wallace. |
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Mr. M. Taylor. |
Question declared lost.
Amendments Nos. 1b to 2m, inclusive, and amendments Nos. 2 to 6, inclusive, to amendment No. 41 not moved.
Amendment No. 41. agreed to.
I am not clear on what the Minister said in regard to the making of regulations. Will the Minister consider including something more specific in the Bill on Report Stage?
I will not agree to that but I wish to inform the committee that I will be making the regulations.
Why not include an appropriate provision?
It is not usual to insert one in that format but I can assure the committee that I will be making regulations.
SECTION 8.
I move amendment No. 42:
In page 9, subsection (1) (b), line 12, after "Deeds" to insert "or otherwise".
Amendment agreed to.
Amendment Nos. 43 and 46 are related and may be discussed together.
I move amendment No. 43:
In page 9, subsection (1) (b) line 14, to delete "that spouse" and substitute "either of the spouses".
The object of this amendment is to enable the existence of a statutory joint tenancy to be formally registered. It provides that in the case of registered land if one only of the spouses is registered in the Land Registry as owner of the home both spouses will be entitled to be registered. In the case of unregistered land a declaration will be made by the spouse whose name is on the title deeds and the joint ownership may be registered in the Registry of Deeds or by a certified copy of the declaration. The benefiting spouse may compel the other spouse to make the declaration by obtaining a court order to that effect.
There is no reason why the benefiting spouse should not be able to have the joint ownership registered in his or her own right. After all it is equal ownership. That is the object of these amendments and I trust the committee will agree with them. Under the section as originally drafted it was necessary for both spouses to apply. I do not think that was necessary. Once the benefiting spouse takes over he or she — usually it is she — should be entitled to apply.
This is an improvement. It should be open to the benefiting spouse, usually women, to initiate such proceedings, if necessary. The amendment is welcome.
Amendment agreed to.
Amendment No. 44 not moved.
I move amendment No. 45:
In page 9, subsection (1), line 18, to delete "those" and to substitute "the deed or".
This is purely a drafting amendment.
Amendment agreed to.
I move amendment No. 46:
In page 9, lines 20 to 30, to delete subsection (2).
Amendment agreed to.
Amendment No. 47 not moved.
Section 8, as amended, agreed to.