Amendment No. 86a is in the name of the Minister. Amendment No. 1 to 86a is related to the amendment No. 86a and both may be taken together, by agreement. The original amendment No. 86a was discussed with amendment No. 74a. However, the Minister has tabled a substitute amendment No. 86a containing a drafting change. Deputy Shatter has tabled an amendment to this amendment. The new amendment No. 86a and Deputy Shatter's amendment thereto may now be discussed together.
SECTION 24.
I move amendment No. 86a:
In page 19, paragraph (a), to delete lines 4 and 5 and substitute the following:
"(a) by the substitution of the following section for section 2:
2.—(1) In this Act "family home" means the dwelling in which a married couple ordinarily reside at any time after the commencement of section 4 of the Matrimonial Home Act, 1993, as their sole or principal residence.".
Subsection 1 amends the Family Home Protection Act, 1976, in a number of respects. Paragraph (a) brings the definition of "family home" and "dwelling" in that Act into line with those of "matrimonial home" and "dwelling" in section 2 of this Bill. Except in relation to "dwelling," the 1976 Act definition will still include mobile home type dwellings whereas the section 2 definition does not because the Bill provides separately for those dwellings in sections 2 (1) and 3. These new definitions will not apply to conveyances, transactions or proceedings effected or instituted before section 4 of the Bill comes into operation. On and after that day the definitions of "family home" and "dwelling" will be identical in both Acts.
There is a major technical problem with this amendment. I recognise the Minister is trying to meet a problem we all mentioned, which is that we are going to have a variety of different definitions of matrimonial homes and family homes and former family homes. The Minister is trying to provide a relatively simple or straightforward definition that is similar throughout legislation.
One area has not been addressed and it gives rise to a problem. My amendment proposes that the section should read as follows:
In this Act, a "family home" means the dwelling in which a married couple ordinarily resided or reside as their sole or principal residence. The expression comprises, in addition, a dwelling in which a spouse whose protection is in issue ordinarily resides or, if that spouse has left the other spouse, ordinarily resided before so leaving.
The Matrimonial Home Bill has one principal aim, aside from amending other legislation which is that where a couple live in a property as their matrimonial home immediately prior to the Bill coming into force, that home, is regarded as jointly owned following the legislation coming into force. That is the impact of the legislation.
The Family Home Protection Act, 1976, did not confer a wife with property ownership rights. It gave wives a right of veto: if there is a family home in existence, the home cannot be sold without the wife's consent. It did not give her a property interest or a beneficial interest or an ownership right. It was also not necessary under the Family Home Protection Act that the wife whose protection may be required be resident in the property immediately before the Family Home Protection Act came into force. It was possible that if one tried to sell a house in 1978, although the wife had moved out in 1975 because of her husband's violence, it would be regarded as a family home even though the wife was not resident there in 1976 when the Family Home Protection Act came into force. That is complicated but the Minister will understand my point. Equally in 1977 where a wife was resident in the property that was the family home and the husband had deserted her and moved out in 1975, the deserting husband could not in 1976 sell the home without the wife's consent.
The Family Home Protection Act provided two rights for wives. The first was the right of veto whereby the home could not be sold without the wife's consent. The wife may or may not have been living in it when the Act came into force but, once it fell within the definition of a family home, it could not be sold without her consent. Second, under section 5 of the Act, if the husband placed the home at risk by his behaviour, the wife could take him to court and get a court order against him. How could a husband place a home at risk by his behaviour? The obvious situation would be where the husband was the main income earner who paid the mortgage and he stopped making mortgage repayments with the result that the building society threatened to take possession of the property. In that case the wife could bring proceedings under section 5 of the 1976 Act and seek a court order to force her husband to make the mortgage repayments.
The courts also made orders under section 5 of the Act in more complicated situations. If the husband was spending money unwisely on gambling and/or alcohol and creating debts for which he was pursued by creditors thus putting the home at risk by virtue of his behaviour, his wife might get a court order under section 5 of the Act to have the home transferred into her sole name to protect it from future judgment creditors or from a judgment mortgage. There have been a number of cases since 1976 where the behaviour of a profligate husband has resulted in a family home, which is held either in his sole name or in joint names with his wife, being placed by the courts in the wife's name.
What problems does the Minister's amendment create? It seems that, as and from the coming into force of this Bill a family home is given a new definition; the definition that applied since 1976 no longer applies. Today a wife could be living in a property which is regarded as a family home under the 1976 Act, a property where she and her husband lived together since the early seventies, or the husband might have left home prior to 1976 or even six months ago. Under the 1976 Act it is currently a family home and not only has the wife the right to veto its sale but, if the husband engages in conduct to place the home at risk, she can invoke section 5.
Let us assume that this Act commences on 1 January 1994. It says:
"family home" means the dwelling in which a married couple ordinarily reside at any time after the commencement of section 4 of the Matrimonial Home Act, 1993.
This section could have the following effect on deserted wives. There are probably about 17,000 deserted wives receiving benefit in this country. A deserted wife living in what is the family home has a series of protections under the Family Home Protection Act. If that Act is amended in this way by the Minister and if the wife is not living with her husband prior to its commencement, protections under the Family Home Protection Act will go; if the date for commencement of the Matrimonial Home Bill, 1993, is 1 January 1994 that is when they will go. The deserted wife who today could take a court action under section 5 of the 1976 Act to force a husband to make a mortgage repayment will, this time next year, not be able to do so if this definition is included, because a wife who is deserted today is unlikely to be regarded as part of a married couple ordinarily resident in the home.
The problems in this area were recognised in the Family Home Protection Act. I appreciate that the Minister is trying to provide a uniform definition but the uniformity creates a difficulty in an area where the Family Home Protection Act gives wives additional protection over and above that provided in the 1993 Bill. There is no use having a home in which a wife is told she has a joint interest if, when there is a £50,000 mortgage and the building society is trying to repossess the home because her husband will not pay the mortgage, you take from her the right to make a court application to force the husband to pay the mortgage or the right to ask the courts — without having to get a separation decree — to make an order to put the home in her sole name if her husband's business is on the verge of bankruptcy due to the fact that he has been drinking and gambling and where there is a risk that debts might ultimately be lodged against the home.
The additional protections of the 1976 Act would disappear if the Minister's amendment in this form was accepted. The definition of family home in the 1976 Act reads: "primarily a dwelling in which a married couple ordinarily reside" and that is covered in the Minister's amendment. However, it continues:
The expression comprises, in addition, a dwelling in which a spouse whose protection is in issue ordinarily resides or, if that spouse has left the other spouse, ordinarily resided before so leaving."
My amendment is to allow for the first part of the definition to coincide, as far as possible, with the definition of the matrimonial home contained in this Bill but to address the other instances that arise under the 1976 Act.
There is another example of a problem in this area. Let us assume that a wife was forced out of the family home last September by her husband by virtue of his violence. She has not gone to court to get a barring order as she does not want to be left living in the house under a barring order or she might have gone to live with her parents because she does not want to live in a house on her own but she is forced out of the family home because of her husband's violence. A number of situations arise here. When we teased out the definition of the matrimonial home, because they must be residing in it as a married couple immediately before the legislation comes into force, we established that the wives who, for example, moved out a year ago would not under this legislation get automatic joint interest but will have their rights under the Judicial Separation Act. If that is to be the case — although I argue there is no need for it — that is one effect of the legislation where one can presumably say that a court in deciding the matter under the Judicial Separation Act will take some cognisance of the rights that would have arisen, if the wife had remained in the house, under the Matrimonial Home Bill.
However, the wife who moved out a year ago due to her husband's violence still has a number of protections under the Family Home Protection Act. If the husband tries to sell the house he cannot do so without her consent. If the building society tried to repossess it even though she is out of the house she can still bring a court application to have the mortgage paid or if the husband tries to allow creditors to attach debts to the house she can still bring a court application even though she is living outside the house because, under the second part of the definition of the 1976 Act, she is a spouse who has left the other spouse ordinarily resident in the house before so leaving. The husband cannot sell the house behind her back in that situation and she can bring court proceedings to ensure that does not happen.
If the Minister amends the definition in the way he is now suggesting that wife will be prevented from bringing applications of this type under the Family Home Protection Act. This legislation gave rights to wives in the family home of an ownership nature and still requires the additional legal remedies available under the Family Home Protection Act to give those rights real meaning in certain circumstances where either marital violence or desertion arises or where the husband is spending the family funds in an unwise way with a possibility that the family home could be lost.
I hope the Minister will regard this as a constructive amendment designed to ensure that we do not at the end of the day, due to the different functions of the 1976 Act compared to this Act, create a gap in legislation that was failed in 1976 after a lot of campaigning to get the Government of the day to fill it.
As Deputy Shatter rightly said this is a complex area and some transitional provision may well be necessary to cover certain situations arising under the 1976 Act which may not be covered under the amended definition. I am not saying that the wording of Deputy Shatter's amendment may necessarily be the solution but the matter requires attention and I will bring forward something on Report Stage to cover the point.
I would go so far as to urge the Minister not to make his amendment part of the Bill at this stage. I say that in good faith and I am not trying to make any political capital, it is a practical point. If this amendment is made to the Bill it will create unnecessary alarm and worry, this Bill is complicated enough without people writing articles in papers or making broadcasts about all this in the next few weeks suggesting that wives or husbands who may currently be under family pressures may be at risk of losing protections they can avail of already.
I had the weekend only to consider this and I am sure the Minister and his officials have probably only had an opportunity in the last half hour or so to consider the content of the amendment I have tabled yet because of its importance it requires more consideration. Neither of these amendments should be made, we should come back to this on Report Stage.
Some adjustment is necessary. I am concerned with the existing definition in the 1976 Act which is ambiguous in some respects and I want to adequately cover both aspects of the matter, the matrimonial home aspect and the 1976 Act aspect. I will bring forward another amendment to cover this point. I suggest that we agree amendment No. 86a but I confirm to the committee that that will be varied on Report Stage. I would like to assure spouses that there will be no question of any rights that any couple or spouse has under the 1976 Act being in any way adversely affected by this legislation. On the contrary, the rights will be added to, that is its purport and intent.
I am anxious to complete this and I do not want to create difficulties. We are trying to be constructive but we cannot go along with this amendment being put in this Bill. I know it is complicated but, put simply, it affects rights and protections currently available to thousands of wives which will be removed from them. I do not want to be sensational and I have tried to deal with the technical problems involved but the Minister's amendment affects thousands of wives in family homes and would deprive them of protections they can avail of at present.
It would be wrong for the committee to agree to make that amendment to the Bill. As we have discussed it at this stage and we can come back to it on Report Stage it is reasonable not to make this amendment. If the Minister insists on pursuing his amendment I will put my amendment because it will be voted on first. My amendment will ensure that difficulty will not arise and, as the Minister says, we can still come back to it on Report Stage.
I see no purpose in including a defective amendment in the Bill because I do not know what will happen on Report Stage. I have no certainty what will come from the Minister's Department. We cannot simply sit here quietly and let an amendment be made to the Bill which could detrimentally impact on the position of thousands of wives — and indeed husbands. If the Minister wants to make the amendment I ask him to take on board the amendment to have tabled which means that the protection we are concerned about is there. I will not press my amendment if the Minister does not press his otherwise we will have to have a vote on the matter.
The probability is that the matter will be dealt with on Report Stage by the adoption of my amendment with a further addition or subsection to it to cover that transitional position, in dealing with the 1976 Act, the rights of people who do not achieve cover under the 1993 Act. However, I have no objection to withdrawing my amendment and we will deal with the matter on Report Stage.
Amendment No. 1 to amendment No. 86 (a) not moved.
Amendment No. 86a by leave, withdrawn.
Amendment No. 7 is in the name of the Minister. Amendments Nos. 88 and 89 are consequential and amendments Nos. 87, 88, and 89 may be taken together.
I move amendment No. 87:
In page 19, paragraph (b) (ii), to delete lines 21 to 24.
These are technical amendments. Section 24 (b) amends the Family Home Protection Act to provide a time limit beyond which conveyances of family homes cannot be challenged on the ground that a spouse's consent was not obtained. The time limit corresponds to that relating to matrimonial homes in section 12 of the Bill. Section 24 (b) excludes registered land from its scope. The reason for the exclusion is that it was considered unnecessary by reason of a decision of the High Court in Guckian v. Brennan, 1981, Irish Reports 364, that the right conferred on the spouse under the 1976 Act was the right affecting the sale transaction as opposed to investing the spouse with any right affecting land or property and that the conclusiveness of the registrar as to the ownership is not affected. However, the conveyancing committee of the Law Society suggested that it would be desirable to make the assurance doubly sure and that is why I am putting forward these amendments which make it quite clear that the limitation period applies to both registered and unregistered land.
I agree with these amendments. I am as anxious as the Minister is to be doubly sure which is why I tabled an earlier amendment which he said was unnecessary. This is a technical area and I agree with the Minister that these amendments should be made.
Amendment agreed to.
I move amendment No. 88:
In page 19, paragraph (b) (ii), line 25, to delete "(b)" and substitute "‘(8) (a)".
Amendment agreed to .
I move amendment No. 89:
In page 19, paragraph (b) (ii), line 45, to delete "(c)" and to substitute "(b)".
Amendment agreed to.
I move amendment No. 90:
In page 20, paragraph (b) (ii), line 3, to delete "commencement" and substitute "passing".
Amendment agreed to.
I move amendment No. 91:
In page 20, paragraph (b) (ii), line 5, to delete "commencement" and substitute "passing".
Amendment agreed to.
I move amendment No. 91a:
In page 20, between lines 23 and 24, to insert the following subsection:
"(2) The amendment affected by subsection (1) (a) does not apply in relation to—
(a) any conveyances referred to in section 3 of the Act of 1976, the dates of which are,
(b) any proceedings under or referred to in that Act which are instituted,
(c) any thing referred to in section 6 of that Act which is done, and
(d) any transactions referred to in section 14 of that Act which occur, before the commencement of section 4.".
Amendment agreed to.
Amendments Nos. 91b and 92a are related and may be discussed together.
I move amendment No. 91b:
In page 20, between lines 23 and 24, to insert the following subsection:
"(3) The Act of 1989 is hereby amended by the substitution in section 16 of the following paragraph for paragraph (c):
‘(c) an order under section 6 or 19 of the Matrimonial Home Act, 1993;'.".
During the debate on section 6, I undertook to consider the point raised by Deputy Shatter concerning the desirability of making specific provision on section 16 of the Judicial Separation and Family Law Reform Act, 1989, to allow the court to make an order disapplying the section 4 vesting which will take place by virtue of this Bill. Having considered the matter, I am prepared to accept the principle which underlies Deputy Shatter's amendment No. 92a. For drafting reasons, however, I suggest that the amendment be accepted in the form which I have tabled and which substitutes a new paragraph (c) for the existing paragraph contained in section 16 of the 1989 Act.
This is a necessary amendment and it is correct to make it in the way which the Minister proposes. One issue which occurred to me, and which the preceding amendments we dealt with will now address, is that in the case of court proceedings for a judicial separation which were commenced before this Act came into force, a claim could be brought under section 12 of the Married Women's Status Act, 1957. At any given time there can be in the region of 200 couples litigating under the Judicial Separation Act between the High Court and the Circuit Court. A husband and wife who had instituted proceedings would probably be advised following the coming into force of this legislation to amend their pleadings, particularly in relation to the family home, to deal with a section 6 application.
The Minister's technical advice may be different but I was wondering whether rather than removing subsection (c) of the 1989 Act which allows the courts in judicial separation proceedings to determine disputes under section 12 of the Married Women's Status Act, 1957, it would be wiser to leave that subsection in the 1989 Act and put this amendment in as an additional power. Clearly, the courts will rapidly cease to make decisions under section 12 of the 1957 Act and ultimately will be making them under section 19 of this Bill. The Minister's advice may be that that is not necessary. The amendments he and I have tabled are designed to achieve the same purpose.
My advice is that the form I have submitted is the appropriate and correct one and the additional format suggested by Deputy Shatter is not required. I will, however, look at it again to be doubly sure.
Amendment agreed to.
I move amendment No. 92:
In page 20, between lines 23 and 24, to insert the following subsection:
"(3) Where a court, when granting a decree of judicial separation under the Act of 1989, orders that the ownership of the family home (within the meaning of the Act of 1976) shall be vested in one of the spouses, it may order that section 3 (1) (prior consent of spouse to conveyance of interest in family home) of the Act of 1976 shall not apply to any conveyance by that spouse of an interest in the home and, if the court so orders, the said section 3 (1) shall have effect accordingly.".
Amendment agreed to.
Section 24, as amended, agreed to.
Amendment No. 92a not moved.
SECTION 25.
I move amendment No. 93:
In page 20, paragraph (b), line 29, to delete "his spouse" and substitute "the spouse of the person".
Amendment agreed to.
Amendment No. 94 not moved.
I move amendment No. 95:
In page 20, paragraph (c), line 30, to delete "matrimonial home" and to substitute "interest".
Amendment agreed to.
I move amendment No. 96:
In page 20, line 34, to delete "his spouse" and substitute "the spouse of the person".
Amendment agreed to.
Amendment No. 97 not moved.
Section 25, as amended, agreed to.
NEW SECTION
I move amendment No. 98:
In page 20, before section 26, to insert the following new section:
"26.—In any action to enforce a right to property arising under or by virtue of this Act, the court may have regard to any legal or equitable interest which in its opinion has been acquired by any person and may declare that such interest extends to the whole or any specified part of the beneficial interest in the property.".
The amendments made since we put down this amendment may mean that this one is no longer necessary. The purpose of the amendment is to make it clear that if one spouse puts a great deal of money or an unusual amount of effort into improving the value of the matrimonial home the court would have the ability to give credit for that extra contribution if there was a dispute.
This amendment relates to section 21, to which Deputy Shatter put down an amendment earlier, and which perhaps should have been discussed when we were discussing section 21. I believe there is a body of case law about this. The purpose of the amendment is to clarify the situation in relation to section 21 where the court is allowed to take account of financial contributions and improvements made to increase the value of the home. Section 21 (2) excludes improvements made at a time when any interest in the home was vested in the spouses as joint tenants by virtue of section 4. It would allow the courts to look at the various contributions and might be in addition to section 6 which allows the court to look into a situation where one spouse might be unjustly enriched. The Minister may deem that the legislation adequately covers the point that I am making here and, as he said to Deputy Shatter earlier, that the case law is suffiently established. I will leave it to the Minister.
Amendment, by leave, withdrawn.
NEW SECTION.
I move amendment No. 99:
In page 20, before section 26, to insert the following new section:
"26.—After the passing of this Act the matrimonial home shall not be subject to probate tax.".
Since tabling this amendment — and I would like the Minister to clarify this — I understand that section 112 of the Finance Act excludes the dwelling house for the purposes of probate tax. I would like the Minister to confirm that this new probate tax, which is in fact the return of death duties, excludes the matrimonial home and has the same definition of dwelling house as included in the Finance Act.
I confirm that the dwelling house and ordinary household effects are specifically exempt where the deceased is survived by a spouse. The tax also does not apply to joint property which passes by survivorship even if it is not the matrimonial home.
I want to raise one issue under the umbrella of this amendment so that I will be in a position to pursue it on Report Stage. I would like the Minister to examine whether there is anything in this legislation which could increase the amount of residential property tax for which families could become liable. I do not know whether the Minister has looked at that. It is quite possible that the effect of this legislation, which is desirable, may in certain instances increase liability for residential property tax. There should be a section in the legislation stating that nothing in the act will result in any person or persons becoming liable for higher residential property tax than the sum payable by them prior to the commencement of the legislation. I am raising this issue now so that I will be allowed to pursue it on Report Stage.
I cannot think of a basis. I must admit and I will consider the question of a loan under which the residential property tax position could possibly be effective.
Amendment, by leave, withdrawn.
NEW SECTION.
I move amendment No. 100:
In page 20, before section 26, to insert the following new section:
"26.—The production of a Certificate of Marriage shall be sufficient proof of marriage both for the purposes of this Act and the Family Home Protection Act, 1976.".
This problem was raised by a conveyancer with me. It relates to problems experienced in proving marriage for the purposes o the 1976 Act. It was suggested that, perhaps, it would be simpler to have a certificate of marriage as adequate proof of a marriage. It seems there are procedural and evidential problems proving a marriage. Would the Minister comment on that?
The only possible explanation for the confusion would be that State marriage certificates are the means of proving a marriage. There is no question but that they are accepted. In my experience that is how marriages are proved. For these purposes — this may be what the Deputy is thinking of — Church marriage certificates are unacceptable in conveyancing practice. It may be that the intent of this amendment is to provide that Church marriage certificates would be acceptable for this purpose. That probably would not be good practice. There is no problem about proving a marriage. One gets a State marriage certificate and that procedure is well tried and is reasonably satisfactory.
Will the Minister look at the situation in relation to marriages that take place, for example, in registry offices in Northern Ireland which would be the result of the non-recognition of a divorced person in this jurisdiction? Will this be deemed to be a valid marriage in accordance with the procedure in the Bill?
The fact that a marriage certificate from Northern Ireland or, indeed, from the Republic of Ireland is produced would not be a guarantee that the marriage is valid. So far as conveyancing practice is concerned, for these purposes a registry office marriage certificate from here, Northern Ireland or the UK or whatever is accepted as evidence that a marriage took place.
Amendment, by leave, withdrawn.