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Select Committee on Social Affairs debate -
Monday, 20 Sep 1993

SECTION 21.

Debate resumed on amendment No. 81:
In page 18, subsection (1), line 13, after "the" to insert "purchase and/or the".

Amendments Nos. 81 and 81a are related and are being discussed together. Deputy Flaherty was in possession.

When we adjourned on the last occasion the amendment in the name of Deputy Shatter was one of the remaining substantial amendments. We did not have the opportunity of fully analysing the Minister's intention in relation to it and we adjourned to allow us to have a full discussion of the matter. I raised my concerns that this involves the deletion of a provision in earlier legislation which over time has been used to extend the entitlements of women and their legal rights in relation to property to which they have contributed. The actual terms used in this are very important. I gather the Minister is willing to accept some amendment in this area and we have ensured that we have improved the situation in relation to women rather than disimproved it.

I think I had made my contribution on the last occasion in relation to these two amendments. The point was that the thrust of the amendment, as I told the committee then, is unnecessary in the light of long-established case law and I gave the appropriate references.

Section 21 is designed to amend the law in relation to improvements only. The amendments bring into question the wider question of a regime of community property in marriage as is recommended in the second commission's report. That falls outside the scope of this Bill. It will require and will receive detailed consideration for the future. For those reasons I do not think the amendment is required as the law on the subject is already quite clear. The intent of the section is in order for the purposes of this Bill as it stands.

I have very serious concerns about this. I want to put them as succinctly and as clearly as I can. The regime we are establishing in Part III under section 19 of the Bill is replacing section 12 of the Married Women Status Act, 1957 and is setting out a new procedure and in a sense is updating the situation with regard to all property disputes that arise between a husband and a wife.

Section 12 of the 1957 Act replaced section 17 of the Married Women's Property Act, 1882. The 1957 Act and the 1882 Act used very similar terminology so that when the 1957 Act was passed there arose, subsequent to its passage, some minor legal disputes as to whether the legal cases decided before its enactment still applied in this country. The courts initially held that they did. There is a huge body of case law that has been developed by the High Court and the Supreme Court pursuant to section 12 of the 1957 Act which sets out a series of very complex rules detailing the circumstances in which someone acquires an interest in property in circumstances where their name is not on the legal title to the property. All of this legislation up to Part III is concerned with giving a wife a joint interest in the matrimonial home. Part III, section 19 and its interaction with later sections, particularly section 21, is concerned with allowing the courts to determine a wife's ownership rights in property which are not confined to the matrimonial home but which might extend to a wide variety of different properties.

Someone on the other side of the House may say I am dealing with a miniority situation, that it does not apply to the vast number of people. This is true; the vast number of people own one property as their family home. There are people in this country who own and run businesses, companies and shops and who on occasions construct premises for rental purposes and make accommodation available to people. For the information of those who are not familiar with this, there has been a very large number, of court cases since 1957, in particular where a wife has made a financial contribution in the acquisition of a family business or to the formulation of a company in which the husband has a major shareholding, or by way of financial contribution to other properties which may be investment properties, the wife has an ownership right or interest which is not based on any discretion the courts might exercise under the Judicial Separation Act but which is a right required by virtue of her contribution either direct or indirect. There have also been court cases which determine that a wife has an interest in properties where she has not made a direct monetary contribution to their acquisition and to businesses but where her work allowed the properly to be accumulated, very often in the sole name of the husband.

My concern is that section 19 as we have it sets out the procedure which is going to replace section 12 of the Married Woman Status Act, 1957 but nowhere says that the case law developed under that section of that Act remains extant and applicable to the determination of cases under section 19, save as is provided for in this legislation.

I agree generally with the intent of section 21. As originally framed the section is designed to address an anomaly which arose in this area of the law which was addressed in England 25 years ago. That this anomaly exists was confirmed by the Supreme Court in a relatively recent judgment which decided that where a wife contributes simply to the improvement of property but not to its original acquisition and when there is no mortgage, she may not have a proprietary interest. The Minister is trying to address that.

The amendment I am seeking to make to the section appears on the face of it to be a very simple amendment. This is to insert the word "acquisition" after the word "improvement". This does not seem to be a very shattering amendment, to coin a phrase. but that word guarantees that the current case law as it applies in this complex area, which relates not only to family law and matrimonial property but which affects property law generally will continue to apply and confirms that the principles the courts currently apply will continue to apply and a wife will not merely acquire a beneficial interest where the legal title is not in her name and where she contributes to the improvement only of property.

The aim of this legislation should be, and we have seen how complex the legislation is, to leave things as straightforward as possible for ordinary people and those who are getting legal advice to understand and for the Judiciary to understand. We know that family law can be an extremely subjective area when members of the Judiciary come to exercise judgments on particular aspects of it.

It is my view that unless a section is included in legislation confirming that the case law as developed under the 1957 Act continues to be applicable in the determination of cases under section 19 save as amended by section 21, or more simply unless the word "acquisition" is added to section 21, there will be a plethora of cases which will be to the detriment of wives, those who are currently in marriage difficulties being given advice that they have ownership rights and entitlements to perhaps part of the family business in which the husband has been involved and which is invested in his name. Unless this is sorted out in this legislation, wives will find that a large number of cases will be taken in an effort to establish that this section is an entirely new section providing entirely new procedures based on entirely new principles and that none of the previous case law applies.

In fairness to the Minister he has opted for a very constructive approach to this legislation in seeking to meet objections or problems we have raised. The Minister's only objection to this amendment seems to be that it is simply trying to provide that the present law continues to apply and, as the Minister correctly says, there is well established case law. The amendment is trying to ensure that not only where wives contribute to the improvement of property but where they patently either directly or indirectly contribute to the acquisition of property where that property is not confined to the matrimonial home, the wife will get an ownership right in that other property which is proportionate to the contribution she has made not only to its improvement but also to its acquisition.

This is a very straightforward amendment. It seems to me that my objective and the Minister's objective are the same, but I simply say that the legislation does not ensure that the existing case law in this area will continue to apply. If this legislation is enacted with section 21 unamended and section 19 in its present form, many unnecessary court cases will be initiated not only causing people a lot of unnecessary expense but also adding to the distress that arises when marriages break down. It will simply fuel uncertainty in the property ownership area in relation to any family properties outside the family or matrimonial home.

I urge the Minister to take this amendment on board, not to regard it as superfluous. Even if the Minister thinks the amendment is superfluous, what harm is there in including it? Surely it is beneficial that the position be fully spelled out in legislation and not be left simply to case law developed by the Judiciary over a period of about 100 years.

I can hardly add anything to what Deputy Shatter has raised but wish to underline that this concern has been raised with me by other practitioners in the area. When I read this section first I thought this was a very welcome legal improvement, and indeed it is, but it was pointed out to me that because it involved, through section 19, the deletion of section 12 of the Married Women Status Act, a law which over the years had led to substantial case law improving the recognition of women's contribution in certain areas of family property is being deleted.

In trying to give other rights, those rights are being undermined. The Minister assures us that this will not happen, that the case law will stand on its own, but in the context of questions raised not just by Deputy Shatter but by others who deal with cases in this area, would it not be better to ensure that we do not in any way undermine the existing rights and entitlements in seeking to include rights? Part III of this Bill involves also the deletion of that very well written section in the Married Women Status Act.

It seems unlikely to me that any court here would undertake a new trend in case law arising out of the amended sections in this Bill. It is a long established principle of common law that if a wife makes a monetary contribution to the purchase of a piece of property that she thereby acquires a proportionate share and a beneficial interest in that property irrespective of the name on the title. That has been there a very long time and is well established.

I cannot see that a court would in any way feel that this long-established principle was in any way affected by the Matrimonial Homes Bill. It would be an unusual provision to put into a Bill, I cannot recall ever seeing a provision to the effect that the existing line of case law would still stand. As I understand it, that line of case law is a sequence of law based on common law rather than statute. I may be wrong about that but I think they are common law principles. Nonetheless I want to be absolutely sure that I am right about that so I will consider the matter further between now and Report Stage and if I am advised or come to the conclusion that there is any doubt about that position I will consider a report or something along those lines for Report Stage.

Amendment, by leave, withdrawn.

Is amendment No. 81a in the name of Deputy Shatter being pressed?

In the context of the assurance given by the Minister I will not press that matter now but I advise the Minister we will be pressing it on Report Stage if the matter is not addressed satisfactorily.

Amendment No. 81a not moved.

I move amendment No. 82:

In page 18, subsection (1), line 19, to delete "his" and to substitute "such".

Amendment agreed to.

I move amendment No. 83:

In page 18, subsection (2), line 28, after "otherwise" to insert "or as tenants in common in equal shares".

This is a purely drafting amendment.

Amendment agreed to.
Section 21, as amended, agreed to.
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