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Special Committee Family Law (Maintenance of Spouses and Children) Bill, 1975 debate -
Tuesday, 18 Nov 1975

SECTION 3.

Question proposed : " That section 3 stand part of the Bill."

There are a number of points in connection with this section. I met a number of people who are preoccupied with the definition of " desertion ". I suggest that the section should remain under discussion without formally concluding the debate today so that we can have a full debate on section 3. In relation to the definition of " earnings " I have received a number of submissions relating to social welfare in the context of earnings. Those are points which I have not had an opportunity of raising directly with the Minister. Unfortunately, the organisation made a submission to me but it has not arrived yet.

There is another aspect. When one comes to draft amendments on later sections one often has to go back to the definition section to give effect to a particular amendment.

I am afraid you cannot come back and amend the definition section once it is completed.

It might be as well to leave section 3 over because Members of the Committee might come to draft particular amendments later on that might mean amending the definition section.

It could be done on Report Stage. Have Deputies any points with which the Minister could possibly help them at this stage?

Yes. I would appreciate the Minister's assistance in relation to the definition of " desertion ". It states in the section:

" desertion " includes conduct on the part of one spouse that results in the other spouse, with just cause, leaving and living separately and apart from him, and cognate words can be construed accordingly.

Is it necessary to put in the words " with just cause " ?

I think so, because this repeats in a statutory form the concept of constructive desertion which arose from the court's interpretation of desertion under the old legislation. As desertion gives rise to certain legal consequences it is essential that constructive desertion should be confined to cases where there is just cause, so that a spouse could not claim constructive desertion unless for good reason she was in effect forced to leave the home. It will have to be with good cause. The definition of desertion here ties in with that in the Succession Act, 1965. The definition is so drafted as to provide for constructive desertion and it would be wrong to allow a claim of constructive desertion unless there was just cause for leaving the home.

The Minister in his reply has given rise to something I have been thinking of. In reply he inadvertently said " with good cause ". I wonder if the word " just " does not import into the causation of the deed some element which might not be entirely justifiable. Could we hear the Minister's views on that? What about the phrase the Minister used, " with good cause "?

I think " with just cause " has a certain legal tradition. For example, a court might find that the cause was good but was not just. There could be a distinction there.

In that distinction, personally I would prefer " good " to " just ".

To have the word " good " would, I think, have the effect of narrowing the concept of constructive desertion. I think it is wiser to have the word " just ".

What about the word " reasonable "?

I think the word " just " imports reasonableness.

I could see a court getting itself involved into the justice of one of the spouses leaving. What we are concerned about is whether the spouse—probably the woman—had a good reasonable cause for leaving.

I think there would be no doubt that the word " just " would import the idea of a good reasonable cause, that you could not have a just cause unless it was also a good reasonable cause.

I am sorry to be stressing this point but one could see this being teased out in court.

I know what the Deputy is after and I agree with him that when there is in fact a constructive desertion, a genuine case should not be excluded because of the wording here. I am satisfied that the phrase " with just cause " will cover all the cases the Deputy has in mind.

If a woman leaves because she is terrified, there is no element of justice involved in that?

It does not mean justice in that sense there. There would clearly be constructive desertion in the case mentioned by the Deputy.

Is it the case that justice here is not equivalent to something involved in the concept of justice?

I wonder if it is necessary to leave it in? I think we come back to my original suggestion : let the courts interpret the section without those words.

If the words were not there, the courts would find themselves compelled to find constructive desertion in a case where a wife left but was not blameless in leaving.

That is the point.

She cannot just leave capriciously.

My view is that it is very restrictive but I accept the Minister has a point.

Am I correct in saying that there is quite an amount of case law on the question of what qualifies for constructive desertion?

I do not know the volume but there is a fair amount. This concept of constructive desertion arose as a result of a judicial decision.

With respect, in proposing new legislation I do not think we should have to rely on existing case law.

No, but what I am getting at is that there has been a usage of words on this matter of constructive desertion and on what it means.

Our side will be satisfied if the Minister assures us that this has been fully considered by him and his advisers and that they are satisfied it is necessary and it is the right word.

I am satisfied about that but, as the Deputy has raised the matter and as we have another week to consider it again, if we think the definition could do with the addition " good and sufficient " or some such words, we can introduce an amendment. However, as it stands at the moment I am happy with the wording.

What about the definition of earnings?

With regard to this matter, what is possibly in the Deputy's mind is the suggestion that " earnings " as defined is too narrow and excludes the income of the self-employed person. Of course, " earnings " is relevant only in regard to the attachment provisions. It is only earnings in the sense of money paid by an employer to an employee that are relevant here. There cannot be an attachment in the case of the self-employed person. It only works when there is a third party, namely, the employer to whom one can direct the attachment order. The fact that " earnings " refers only to wages or salary or money received in the course of employment is not in any way a curtailment of the rights of the neglected spouse.

What about the attachment of income, where one might attach social welfare payments? A person could be on pay-related benefit and there should be no reason why the State should not have the right to attach the wife's portion or the children's portion.

That would be a matter for discussion on the sections later on. It does not arise on the definition of earnings as such. I suppose it would be an administrative matter for the Department of Social Welfare as to how the social welfare benefit was to be paid. At the moment that Department can, and does, pay benefits to deserted wives.

I have known cases where the wife complained to the Department of Social Welfare that she was not getting her fair share of unemployment benefit, that her husband went off on Friday morning when he got the money and spent the day in the pub. In those cases that I have come across the Department stopped payment to the husband. They just gave him the single rate. Perhaps the Department's precise rules on this matter could be clarified between now and the next meeting.

I suppose the State could be assumed to wish to take the lead in this regard——

In the Dublin District Court area at the moment it appears that district justices appear to give attachments to social welfare and there is a slight variation of that amount when a person would go off flat rate to pay-related rate and so on. It seems to me that the definition of earnings here may be so narrow that it would preclude a district justice from taking such measures——

That may be some informal arrangement he has with the Department. That is all it could be.

In the definition of earnings here, a person's legal representative may indicate it is only wages and salary, that perhaps for a third of that period the person's income was social welfare, and would demand exclusion of that. Consequently the man's average earnings would be quite low.

Perhaps the following point might be clarified: is " earnings " here used subsequently only in relation to attachment proceedings?

Yes. It does not enter into the maintenance as such.

Apart from the self-employed person, what is the position of a person whose income consists of dividends?

He would be in the category of self-employed or non-employed. It is not proposed to attach such income——

I can understand the raison d’�tre for not attaching the self-employed person, but in the case of a person whose income arises from outside his own jurisdiction, for instance in the form of dividends, is this not attachable?

They are not, and administratively it would seem to me to be extremely difficult to provide for the attachment to such earnings. First of all, they could arise in a variety of ways and from a variety of sources. A lot of them may be from abroad. Secondly, they will usually be payable at half-yearly intervals and if there is sufficient income otherwise it would be coming in on a more regular basis. As to the amounts of dividends received from investments, indeed it would be impossible in practical terms to provide for the attachment. In any event, I do not think the problem would arise in practice in the ordinary way.

It might in this way. An executive could have part of his remuneration by way of stocks and dividends.

That is in the definition. Earnings means " any sum payable to a person by way of wages or salary (including any fees, bonus, commission, overtime pay or other emoluments payable in addition to wages and salary . . .) " but I thought the Deputy meant a person who is living on investments.

I did, a person with no income but his investments.

It is not proposed to cover that situation. The creditor would have an existing legal remedy available, and, as that remedy involves committal, there should be a sufficient sanction to ensure payment.

What happens in the context of definition of earnings " by way of pension or other like benefit in respect of employment " ? If, for example, a person has a free house or a free car, a very tangible benefit, can that be assessed in the context of emoluments?

Or benefits?

It would give the Revenue Commissioners considerable difficulty. I think it would be impossible to provide for that. It can apply only to money.

I would like to know if perquisites, tips, gratuities, would come within the meaning of earnings. Take the case of a head waiter who very often gets no salary, no payment and very often he pays for his job.

I think the words " other emoluments " in the definition would cover that.

Would you describe a tip as emoluments?

Yes, if paid on a regular basis.

You would want to go to the Latin root.

In subparagraph (a) " or payable under contract of service " : that seems to be a separate entity in itself. If you mean the money that is payable by employer to employee, is there any objection to including therein a provision covering a person who has a firm contract that brings in an income? I am thinking of the letting of land, a man who is getting good letting moneys from his farm. Is there any reason why that should be excluded? It would at least give the court power to deal with one year's income. A man in circumstances such as this has probably stopped running his farm, and is maybe drinking and gambling or something like that. He has sublet his farm and has an income from that, an income from a known source. Would it be possible to include that?

I think it is important to remember that the attachment of earnings procedure depends on there being an employer, a third party, to whom the order can be directed. Its force derives from the fact that there will be an independent third party who has control of the giving of the money and who will be directed to give not all but some of that money to the wife. That concept is not present in the case of anybody self-employed, even in the case of a person receiving money from the letting of lands. The source of the income is too uncertain, it is too liable to be interfered with, and in any event it is not income coming from a third party as employer to the maintenance debtor. It is his own money and the ordinary remedies are available to attack that money in the normal course of law. What we are providing for is machinery to attack money that is otherwise immune from attack, wages and salaries being paid regularly. Moneys coming from the letting of lands can be attacked in the ordinary way.

That is interesting, because I am just wondering whether a district justice has legal authority to attach income from such sources under this present power.

No. The sheriff will have power——

Once an order is made——

Yes. A maintenance order under this Bill has attached to it all the processes of distress that are available for an ordinary debt.

The Minister is satisfied that district justices will have the power——

Yes, and the sheriff will have the power.

The only reason for attachment proceedings is that wages are immune otherwise?

At the moment. This is a positive source under the control of a third party.

And cannot be got at in any other way?

Cannot be got at in any other way.

I understand there is an immunity in relation to State pay like that of the Garda——

That is all brought in?

Is subcontracting covered?

Here you get into the realm of the lump. The lump has caused lots of difficulties. However, there is a subsequent section, section 14, which gives the court a certain amount of discretion to determine whether particular payments are earnings. There would be certain subcontractors about whom there would be no doubt, in that their receipts from the builder would not be earnings because there would have been bona fide subcontracting. There would be others who would take payment by way of regular small sums and larger amounts at intervals. I think they will be covered by the Bill. In any event, if those people argue that what they are getting is not earnings, there is discretion in the court, by virtue of section 14, to decide the case. Therefore, the subcontractor or the man on the lump is catered for by that provision.

I doubt it. He might come in in that specific way by order of the court, but is the Minister satisfied that lump contract payments would be caught under (a) and (b) of the definition section. I do not think it is.

They might. It will depend on the individual case. The genuine lump is payable to a genuine subcontractor—there is no relationship of master and servant there, and the subcontractor would be getting one payment. In effect, he would be a self-employed person. However, you get the grey area of the person who is working, say, as a tradesman and who is given a specific amount of work to do. He quotes a price for the work but has an arrangement that he is to be paid £X per week——

Yes, subbed, and a lump sum at intervals during the course of the work. It would be very doubtful if that person would be a bona fide subcontractor, and I think that person would, in fact, be earning as contemplated by the definition in the section. It would be impossible to devise a definition that would cover all the variations that a practised lumper could devise. It is a matter that has got a lot of thought from the Revenue point of view. What we propose is that under section 14 the court will determine the matter.

The District Court has some discretion?

Yes. I do not think we can go any further than that. If, for example, a subcontractor has visited the Revenue Commissioners and after investigation is found to be bona fide there will be no question about him; but, if he is a bona fide contractor and he has got payment by way of a lump sum, the court will have discretion.

Many a lump contractor, rather than have the matter aired in court and brought to the attention of the Revenue, would pay up.

One of the perennial difficulties has arisen. I am taking an analogy where there has been separation proceedings. It can sometimes take time for the matter to be dealt with by the court and the spouse who has been wronged, deserted, is in considerable arrears financially. When you get an order in the court you have a fair sized lump sum to execute for. It concerns me because I had somebody who has a fairly large income coming in and a certain sum would be attachable here. Obviously a situation will exist for some time where a weekly payment should be made. Is there any way whereby that large sum can be utilised for future payments over a period of time as a fund to meet these payments? I can foresee a person getting rid of his money quickly and saying " Right, that is all I have ".

If the parties are wealthy it will be in the High Court. There is no limit as to the amount that court can award by way of payment. The court can make an award for the payment of one sum and can direct that that sum be paid.

There has been difficulty about that. You have to wait until the sum reaches a certain amount and then you get a charge against the property or something of that nature.

You may be forced to go back on other remedies, such as execution or something like that.

Is there no way of earmarking a fund to pay weekly sums over three months, six months or some period like that?

No. A sum cannot be earmarked in advance of the making of the attachment order.

I can see avoidance being exercised in certain circumstances.

I do not see how.

I know it is a difficult matter.

In relation to the definition of " dependent child of the family " there is a view held that this is perpetuating the distinction between legitimate and illegitimate children. A legitimate child has the right to maintenance until 21 years of age if he or she is obtaining full-time education and the illegitimate child is entitled to it only up to the age of 16 years.

I will be putting down an amendment to cover that and it will arise under section 26, which deals with illegitimate children.

Is there need to change lines 24 to 36 in the definition section? Undoubtedly those lines can be regarded clearly as discrimination between the children of married and unmarried parents.

We will remove the discrimination. There will be an amendment to remove it.

That is very welcome. In relation to the definition of " spouse " is common law wife included?

No. There is, as far as I know, no such being as a common law wife in our law.

I know that section 3 is not being formally passed today. In relation to that section I will certainly have some proposals to make.

Is there anything further the Deputies want to discuss in relation to this section today? I started the discussion in order to get some matters dealt with.

It has been a useful discussion. Could I ask you to have put at our disposal copies of the Maintenance Orders Act, 1974, and that very fine piece of legislation, the Guardianship of Infants Act, 1964?

Does the Deputy want many copies?

It would be very useful to have one or two copies of the Guardianship of Infants Act, 1964, but if we could all be furnished with copies of the Maintenance Orders Act, 1974, it would be very useful. It would be very helpful as we go along discussing this Bill because there are a number of amendments by the Minister which relate specifically to it.

I can arrange for a number of copies to be made available.

It would be helpful if we could have copies available in front of us.

The Minister has amendments down in relation to the Maintenance Orders Act, 1974.

They are very technical and purely drafting.

May we make further submissions on section 3 at a later stage?

If there are any further matters that Deputies want to mention at this stage it would be useful to know what they are so that the Minister could be prepared.

Not at the moment, but we may have other amendments on the question of legitimacy and illegitimacy.

We cannot put in amendments to section 3 at this stage because discussion of the section has been entered into. We could discuss it further and bring in amendments on the Report Stage. There are no existing amendments.

Once we have entered a discussion on this section can we not propose amendments?

No, there is a ruling on that.

Is it as rigid as that?

I am afraid so.

I thought the Law Reform Bill allowed us to take an amendment as we went through.

No. That actual point arose. The amendments could not be taken once the section was entered into.

The Committee adjourned at 5 p.m. until 4.15 p.m. on Tuesday, 25th November, 1975.

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