Amendments Nos. 23, 25, 27, 28 and 33 are related and amendment No. 34 is consequential in so far as it relates to Deputy Shatter's amendment No. 20. So they were being taken together and Deputy Shatter was in possession.
Amendment No. 20 (Resumed)
Debate resumed on amendment No. 20:
In page 6, lines 8 to 17, to delete subsection (2).
Chairperson
We had the last day a detailed discussion to which a number of Deputies contributed, dealing primarily with section 4 of the Bill and a large number of amendments that either relate to that section directly or which relate to additional sections that have been proposed. During the course of the contributions made, a number of queries were raised with regard to both the original section as drafted and with regard to amendments that I have tabled. I would like to deal with those first before I deal with the amendments that other Deputies have tabled because it might clarify matters. The reality is that we have been having a discussion which in real terms would now stretch to covering three possible sections of the Bill both being an original section and two additional sections that could be inserted as a result of the discussions that have taken place. I thought it might be helpful to deal broadly with the framework that my own amendment as tabled envisages, taken together with the original provisions in the Bill, so that we can put it in some sort of perspective.
Section 4 of the Bill and the amendment which I have tabled — which is amendment No. 28 — which would provide for a new section 5 in the Bill — provide the following broad framework. They are based on an assumption that a couple who run into marital difficulties and who find themselves in a position in which they have to consult with a lawyer prior to the hearing of any court proceedings are given the maximum possible information as to the alternative courses of action they can follow in dealing with the problems they have encountered and they are designed to ensure that information is supplied to them. What some couples may be aware of well before they consult with lawyers, many couples may be unaware of in practice.
Section 4 deals with the position of a spouse who consults with a solicitor with regard to the bringing of separation proceedings. For simplicity's sake we could assume that that spouse is the wife. Under section 4, before the solicitor can issue court proceedings, section 4 (1), to which there is no substantive amendment and which appears to be largely agreed, requires the solicitor to discuss, in this case, with the wife who has consulted with him the possibility of reconciliation and to furnish the wife with the names and addresses of persons qualified to help effect a reconciliation. That does not force a wife to go to marriage guidance counselling or to a particular counsellor if she does not want to do so. It merely requires the lawyer to furnish the wife consulting with him with information. It also requires the lawyer to discuss with that wife the possibility of resolving the marital difficulties where the marriage has completely broken down without the necessity for court proceedings by negotiating and concluding what is known as a separation agreement or a deed of separation and in doing so requires the lawyer also to make the wife aware of the availability, if any, of mediation services to assist in concluding an agreement. That means at an early stage, a wife who seeks legal help must be furnished with a variety of information by a solicitor before the solicitor engages in a cavalry charge into the courts on her behalf. It seems that there is no disagreement within this committee about that provision.
There are amendments tabled to this section. The Minister is seeking, in one of his amendments, if I could deal with it first, to have subsection (3) of this section deleted. Subsection (3) is the section which seeks to ensure that the lawyer consulted by a wife carries out the statutory obligations imposed upon him in subsection (1). In other words, the section is designed to ensure that, before someone is embroiled in court proceedings, a lawyer has supplied the different information to the wife consulting with him and she has been presented with the options that that information covers. Subsection (3) ensures that the lawyer has dealt with matters in this way by requiring him, when issuing separation proceedings, to certify to the court that the has given this information. If a lawyer does not so certify, the court can adjourn the court proceedings for a reasonable period of time. The practical reality of that means that, when a court case comes into hearing and it is alleged a marriage has broken down and the court is seeking to ascertain whether a separation decree should be granted or not, the judge will have a file in front of him in the court which will contain a copy of the court papers with a certificate making the judge aware of the fact that the other possible options have been made known to the wife before she went to court. In the absence of such a lawyer's certificate, the judge would know that such options have not been discussed with her and that might considerably influence the approach the court would take in determining whether the marriage has broken down or there is a possibility of reconciliation or not.
The Minister proposes, for reasons I do not understand, that subsection (3) be deleted together with subsection (4), which makes provision for rules of court to set out in a sense the form of certificate necessary. In the absence of that certification process, the provisions in subsection (1) of section 4, which seek to ensure that full information of this nature is provided before court proceedings are embarked upon, become a meaningless legal formula. They have no teeth. There is no means of checking whether the information has or has not been given in a simple way by a judge who has to deal with a family law problem.
I do not understand why the Minister should be opposed to the certification procedure. It is merely a procedure seeking to ensure that a lawyer consulted about a marital problem has fulfilled the statutory obligations imposed on him pursuant to this Bill. I would hope that members would see the sense in that and that the Minister would not oppose the provisions contained in section 4 (3) particularly as he is not opposing what is in subsection (1), subsection 3 is just to ensure that subsection (1) is complied with. As to subsection (2) of section 4, the Minister proposes that it be deleted and so do I. The Minister proposes that it be deleted in the context, I assume, of his new section proposed in amendment No. 33. I propose that it be deleted in the context of my amendment No. 34.
In dealing with section 4 we both are in agreement that subsection (2) should come out of section 4 at this stage. I will come later on to the differences between the Minister's proposed amendment at No. 33 and mine at No. 34. I would hope that we could agree without division in the committee to accepting section 4 with subsection (2) deleted and subsections (3) and (4) standing, if it is accepted that there should be a means of ensuring lawyers have an obligation to comply with what is contained in subsection (1) and if there is a means of checking that they have complied with it. If any member of the committee is of the view that there should be some change in the phraseology of subsection (3), obviously that is something that could be dealt with on Report Stage but, as it stands at the moment, it provides a means of ensuring the carrying out of the obligations imposed upon lawyers, which are of a unique nature in Irish legislation but which have been imposed upon lawyers in other countries where there has been a concern to ensure that husbands and wives are not rushed unnecessarily into marital court proceedings. Similar provisions have been inserted in other legislation elsewhere to ensure that, where lawyers have such obligations imposed upon them, they comply with them.
These provisions also have another purpose. In a sense, there is an implicit intent behind them which is to ensure that lawyers who are consulted by a distressed wife or a distressed husband who has a family law problem, whose marriage is broken down, realise that they must adopt an inter-disciplinary approach to the problem they are confronted with. There is something more to consider than simply what type of court proceedings should be issued. People who have experience of working in the area of marital breakdown across different disciplines would recognise that it is necessary that people have a broader perspective of the advice they are given in these circumstances. I hope that deals with any worries people have with regard to section 4.
We went on the last day to discuss a number of other amendments. There are two amendments proposed to insert a new section 5 in the Bill. One is amendment No. 27 proposed by Deputy Taylor and the second is amendment No. 28 that I propose. In dealing with that, I would like to come back to the framework that the Bill envisages. The Bill envisages, as I said initially, that a wife consulting with a solicitor, or indeed a husband, will be advised of all the alternatives before court proceedings are embarked upon and a check system will exist so that a court can be assured that advice on the alternatives has been given.
I received a number of representations following publication of the Bill which were to the effect that someone who is an applicant in court proceedings should get such information but, if they do, it is equally reasonable that a respondent should also. If, for example, a wife is given such information before court proceedings are brought, if things reach the stage where they are issued and the proceedings are served on the husband, he should not be under the impression that because a court action is being commenced it is inevitable that there will be a court gladiatorial contest involving major expense, lawyers, a great deal of additional distress and a variety of different court appearances.
Amendment No. 28 which I propose — Deputy Taylor and I are both concerned about dealing with the same problem — was designed to cover two eventualities. It is designed to cover the situation of a husband who is represented by a solicitor and to cover the situation of a husband who is not. It was also designed to cover the problem of a husband or wife who may not be legally represented and who issues court proceedings. A husband or wife who is not legally represented and who issues court proceedings — few do that but some do — will not have an opportunity to discuss with a solicitor the other alternatives to court proceedings. They may themselves as a personal litigant issue a court application.
Amendment No. 28 seeks to ensure that, when that court application is issued, the husband upon whom the court proceedings are served will, at that time he receives the court proceedings, be advised of the alternatives to engaging in a fully fought out court case. He will receive a notice in writing which sets out clearly to him the alternatives that still exist. The fact that a wife has issued proceedings against her husband, or vice versa, does not mean that inevitably there will be a court contest. It may very well be that that will not happen. It may very well be that a husband who has not been taking seriously his wife’s pleas to sort out their marital problems suddenly does take things a great deal more seriously when the reality of court proceedings dawns.
Amendment No. 28 is designed to ensure that, even before a husband consults with his solicitor, he is advised of the alternatives to court proceedings and he gets a suitable notice set out in writing explaining them. It provides for rules of court to set out the type of notice he should receive. That means a husband will be made aware at an early stage of the alternatives. When he goes to consult with a solicitor, the solicitor will get the court documents and this notice and a husband who does not understand the contents of the court documents will have them explained to him by his solicitor, as he will have explained to him the contents of the notice he receives. If a husband is never represented by a solicitor and decides not to get legal advice at all, he will still be aware of what the alternative options are and a wife who does not go to see a solicitor and who issues court proceedings herself in the context of issuing them will get a copy of that notice. If she is issuing proceedings as an unrepresented litigant in the context of our courts, as a wife taking her husband to court without lawyers, she would retain in her possession a copy of whatever court documents she furnishes to her husband. It means even if she had not consulted with a lawyer and if she had never considered what the alternatives are, she then knows of them as a result of the amendment proposed. That is the framework that this sets up. Section 4, taken with amendment No. 28, will ensure that both husbands and wives get all reasonable information as to the alternative options available to them to sort out their problems well before a date is set for a court hearing.
There is something of a difference between what I propose and what Deputy Taylor proposes. It is in this context: Deputy Taylor is seeking to impose an obligation on the solicitor acting for the husband to supply this information. It would certainly be worthwhile to ensure that a husband is made aware of the alternatives. I agree and I think that is Deputy Taylor's intent. The difference with his amendment is, that if the husband is unrepresented, he may never be made aware of the alternatives, whereas with amendment No. 28 he is made aware of them whether he is represented or not and if he does not understand the documentation he receives and takes it to a solicitor and is represented, the solicitor will have to explain it to him. There is a difference in that context.
Under Deputy Taylor's amendment, if the husband's solicitor, if we assume the husband is the person who is the defendant in the court proceedings, does not explain what the alternatives are to him and certify that he has done so, the court can unilaterally adjourn the proceedings. The difficulty with that is that, if a wife is seeking court orders and needs them as a matter of urgency, it could very well suit a solicitor who wants to delay proceedings not to give all of this information as to alternative methods to his client as a means of ensuring the proceedings could be adjourned. I am not saying there are many lawyers who would adopt that tactic but some could. Amendment No. 28 ensures that a husband is given the alternative information. If he is represented and does not understand it in written form, his lawyer will explain it to him and the obligation is on the wife or her solicitors, if she is the applicant in the proceedings, to supply the information. In other words, amendment No. 28 covers what Deputy Taylor wants to cover while also dealing with the question of a husband who is not represented and ensures that a husband cannot use the obligation to be furnished with such information as a means to bring about a spurious delay in court proceedings which his wife wishes to process.
That is the essential difference between the two amendments. I hope it will be agreed that amendment No. 28 that I have tabled covers both the matters of concern to Deputy Taylor and deals with matters promptly. If a husband is not represented there are difficulties with Deputy Taylor's proposed amendment. He might consider those difficulties and I would be interested in any comments he may make on them.
The final group of amendments that were discussed the last day relate to the Minister's amendment No. 33 and my amendment No. 34 which relate to section 6 of the Bill. In amendment No. 34 I make provision that, if at any stage during the hearing of proceedings for judicial separation, it appears to the court that there is a reasonable possibility of a reconciliation being effected, the court may, on application of either party, adjourn the proceedings for such periods as seems fit, subject to such conditions, if any, as it deems appropriate, to enable attempts to be made to effect reconciliation. No such adjournment can be for longer than two months without the agreement of both the applicant and the respondent — the husband and wife. The Minister, by mistake, when addressing my amendment addressed it as if it was only possible for an adjournment to be effected for two months. That is not the case. It can be effected for a great deal longer under this provision if both the husband and wife are in agreement.
If a husband and wife are serious about wanting to reconcile, the reality is that court cases in such circumstances will be adjourned normally only if they are in agreement. If they cannot agree that it should be adjourned for three months to attempt to effect a reconciliation, they are certainly not going to succeed in effecting a reconciliation. The difference between my amendment No. 34 and the Minister's amendment No. 33 is that it is possible under my proposal for the court to attach conditions of an appropriate nature to an adjournment. It does not appear that that is possible under the Minister's proposal as it is currently drafted. Indeed, if it was, I would consider accepting the Minister's proposal because it is one aspect of the Minister's proposals which needs to be incorporated in the Bill. It is not in the Bill. I hope we can improve both our proposals on Report Stage.
What conditions could arise? A wife may be willing to have proceedings adjourned for two or three months to see if she can effect a reconciliation, provided her husband is willing to make adequate payments to her for her support while they are both getting help through marriage guidance counselling. Under the proposal I have made, the court could order that proceedings be adjourned to allow the parties to help effect a reconciliation for two, three or four months on the condition that the husband pays £x amount per week or per month to his wife for her support or for the support of dependent children. That could be very important in these circumstances. A wife may be concerned that her husband will assault her because there has been a history of violence in the marriage. She may say she is willing to have it adjourned to see if a reconciliation can be effected but in the intervening period she wants either that the husband be temporarily barred from the family home or an injunction or some other court order to give her some assurance that she will not be assaulted in the intervening period. She may want it to be a condition of the adjournment that, in the event of the husband, during the course of the adjournment, breaking a maintenance order or an order that she will not be assaulted, the proceedings can be immediately restarted and re-opened and that she can get whatever help or protection she requires from the court.
In the context of the Bill as drafted, under section 8 the court does have power to make certain interim orders. There is a need to tie up the power of the court to make interim orders which, in a sense, is a separate matter and will arise normally in emergency situations. That will not normally arise where people are about to be reconciled. Under section 8 interim orders will normally be made where there is an emergency situation requiring immediate court orders. There is a need to ensure that, when proceedings are adjourned, the court can impose conditions which are enforceable. Unfortunately, the Minister's amendment, as currently drafted, does not cover that aspect of matters. That is a very important matter for a dependent wife who comes to court, or for a wife in fear of violence who comes to court but who still has a hope that somewhere along the line she and her husband can sort out the problems and the shock of coming to court might result in her husband realising the enormity of the family problems and being willing finally to take some action.
My problem with the Minister's amendment is with regard to the possibility of imposing conditions. If the Minister's amendment was ultimately amended to include in the context of what he refers to as section 4 (1) — I assume that if we manage to retain section 4 and adopt my section 5 this section might be section 6; we might procedurally have clarification of that — it appears conditions cannot be imposed. The second aspect of this is that I believe the court should have power to adjourn proceedings where there is a practical possibility of the parties sorting out their problems by mediation. I tabled an amendment, to be included in my amendment No. 34, too late for inclusion on this paper some weeks ago.
Because we have not been able to have a talk about procedural matters I have not been able to have it included today. We have been trying to deal with some aspects of procedural matters at the end of meetings and we have not yet come to it. We always get lost in rows about next dates of sittings or what we are going to do in July. In section 6 there should ultimately be a provision that allows the court to adjourn for mediation purposes. That is in the Minister's provision. Again, there is a necessity to provide for the court being entitled to impose legally binding conditions on such adjournments. The proposal I have handed in, which has not been circulated, does so. I would hope we can incorporate that on Report Stage.
There is a further necessity to allow the court to impose conditions. I want to explain what could happen in practice to a family with great marital problems where a husband may wish to make a presentation of a desire to reconcile but he is not serious about it. You may have a husband and wife outside a court waiting for the case to be called, represented by their solicitors. The husband is saying that he is seriously interested in going to marriage guidance counselling and the wife is hopeful that this might work, but she knows she needs maintenance support payments and she knows she needs protection against violence. She wants to make some legally binding arrangements with regard to the children before she will agree to an adjournment. The husband will not agree to any of these things and he is not adequately supporting her.
Under the Minister's amendment the husband could come into court and say, through his lawyers: "My wife is being obstructionist. I want to effect a reconciliation but she will not agree to have these proceedings adjourned, Judge. I want you to adjourn them so that I can effect a reconciliation". Suddenly, the wife who was being quite reasonable outside the door of the court and who was willing to effect a reconciliation, if agreement could be reached about basic financial matters, is being made to look bad in the eyes of the judge. That is the judge she will depend on later on if there is a court contest to get adequate support payments and to get custody of her children and protection against violence. Her lawyer then says to the court that she will only agree to an adjournment if some orders are made about finance. The court will say that, either it can be adjourned to allow them to reconcile or they can go on into hearing, but it cannot make any orders about finance because that is not the application before it. The application before the court is to hear and determine the court proceedings. The importance here is that the court should be able to impose conditions. The problem with the Minister's amendment, as drafted, is that it could result in judges in this circumstance cajoling or forcing wives, who are vulnerable, into adjourning court cases in circumstances where they require the protection of the court. They may feel that, if they do not agree to an adjournment, they will ultimately be disadvantaged.
The final matter I want to address is section 4 (7) of the Minister's amendment. Deputy McCartan said, in his contribution, that he wished to know why this section created problems. When I said that a more detailed provision was necessary to deal with what the Minister intends to deal with and that it would be more appropriately dealt with in Part IV of the Act, he raised questions as to why that was so. I want to reply as to why it is so. It would be generally agreed that, if mediation or marriage guidance counselling is undertaken by a husband and wife, what they say in guidance counselling or mediation should not generally be brought into evidence in court proceedings. It would be generally agreed that the mediator or the marriage guidance counsellor should not be forced to come to court to give evidence.
The Minister is trying to deal with that issue in the context of subsection (7), as currently drafted. There are considerable problems with the way the Minister has drafted it and with what is in that provision at present. First, it seems to me — perhaps the Minister of State, on the Minister's behalf could clarify this — that this provision makes such evidence inadmissible where a husband and wife consult with the marriage guidance counsellor or mediator after court proceedings have been brought and where they have been adjourned under the Minister's amendment. In other words, it seems to confine the non-admissibility of evidence to circumstances where there is counselling or mediation subsequent to the issue of court proceedings, after the court case has been adjourned. If we are trying to encourage people to engage in counselling and mediation without actually going to court and without the court having to be adjourned, it would seem to me that, if there is a general view that such communications should be privileged, that privilege should extend to an earlier time and should not be confined to cases merely where the court adjourns separation proceedings. That is the first problem with this; it does not go far enough in that sense.
The second problem is it goes too far in another way. It does not make such communications privileged; it makes all such communications inadmissible. For members of the committee who are not lawyers there may not appear to be a great deal of difference between the two terms, but there is considerable difference in reality. To say evidence is inadmissible means it can never be admitted in any court hearing of any nature whatsoever. The Minister's amendment refers to this evidence never being admissible in any court, in any proceedings in effect. If during the course of mediation or during the course of marriage guidance counselling, a husband communicates to the mediator or the marriage guidance counsellor that he is going to murder his wife and two days later the wife is found dead in the house in which she is residing, neither the mediator nor the marriage guidance counsellor can be called to give evidence in court that such a threat was made. This is going way beyond what this Bill intends. If a husband, during the course of talking to a marriage guidance counsellor, admits that he has sexually abused his child and the abuse has been going on for some considerable time, I pose the question: should that counsellor be free in a matter of such gravity to report the issue of sexual abuse or to give evidence in court about it if a case takes place relating to it? That is a matter that cannot be dealt with in the way this Bill deals with it.
Under the law at present, communications between husbands and wives before a marriage guidance counsellor who is of a religious persuasion, who is a priest or of another denomination, is privileged but it may be that both the husband and the wife communicate information to a counsellor and that they both feel if there is a court contest that it is in their interest that the counsellor should give evidence in court. Currently they can both waive the privilege. There are many court cases involving marital breakdown at present in which marriage guidance counsellors or other social work personnel, at the request of both husband and wife, give evidence in court and often their doing so greatly assists the court in making decisions about the welfare of children. Under this provision that could not happen.
What the Minister intends to do in subsection (7) is something we need to deal with and I intend to deal with it in Part IV of the Bill. It cannot be dealt with in the way the Minister is dealing with it. What the Minister proposes would create legal problems that we do not currently have in the context of the area of serious crime where husbands physically assault or kill their wives and end up in court, or where wives physically assault and murder their husbands. What the Minister has drafted is not sufficiently detailed. There need to be exceptions in the whole area of privilege. It should not make evidence inadmissible; it should merely be privileged. There is a need to spell out in great detail the circumstances in which that privilege can be unilaterally breached or set aside by agreement by both husband and wife. I am sorry for taking so long but I am replying to an hour and a half of debate that took place the last day in this committee.
I feel slightly ill-at-ease representing the Minister. The last day he dealt with amendments Nos. 20, 23, 25 and 33. Today I will deal with amendment No. 27 in Deputy Taylor's name and amendment No. 28 in Deputy Shatter's name. Deputy Taylor's amendment proposes that prior to the initiation of proceedings for a judicial separation the solicitor acting for the respondent should be required to discuss the possibility of reconciliation, mediation or a separation deed with the respondent in the same way as section 4 (1) of the Bill requires a solicitor to do so with the applicant. I have no objection in principle, nor has the Minister, to the intention behind the amendment, but the amendment causes some difficulty in that it does not cater for the case where the respondent is not represented by a solicitor. The Minister's amendment, No. 33, caters for that situation by giving the court a direct role in the areas of mediation and reconciliation. Many of the speakers the last day, I understand, were in favour of that approach.
If the Minister's amendment is accepted and section 4 (1) remains part of the Bill, there is some argument for having a provision on the lines of the Deputy's amendment and on that basis I would be favourably disposed to it provided, however, that subsections (2) and (3) were deleted. Those subsections correspond to subsection (3) and (4) of section 4 which the Minister has proposed in his amendments Nos. 23 and 25 should be deleted. The arguments for deleting subsections (2) and (3) of the amendment are similar to those for deleting subsections (3) and (4) of section 4. The point is that, since the court would have a direct involvement in considering the possibility of reconciliation or mediation, the provision of a certificate by the applicant's solicitor that he raised the possibility of reconciliation or mediation with the respondent would not seem necessary. I have no doubt that solicitors will conscientiously fulfil the obligation placed on them by virtue of section 4 (1) of the Bill and the first subsection of Deputy Taylor's amendment, if accepted, particularly when they would be aware, assuming the Minister's amendment No. 33 is accepted, that the court would be addressing itself to the question of reconciliation or mediation as the case may be. There is the point also that, though the amount would not be substantial, the provision of a certificate would involve extra cost. However, the main point I wish to make is that, if the production of a certificate is not necessary, it should not be provided for. Subject to that proviso I am in favour of the amendment.
Under Deputy Shatter's amendment, there would be an onus on the applicant spouse or his solicitor, if any, to serve the respondent either before or at the time of service of the application for a decree of judicial separation on the respondent, with a notice of the alternatives to separation proceedings referring therein to counselling, mediation and the possibility of a deed of separation. Moreover, unless the respondent's whereabouts are unknown, the court would be required to adjourn proceedings where the respondent is not served with a notice of alternatives. I see no point in requiring the applicant spouse who does not wish to engage in counselling or mediation to give notice of those alternatives to the other spouse. Reconciliation or mediation requires the co-operation of both spouses and cannot be forced on a spouse, either the applicant or indeed the respondent, against his or her wishes.
The Minister's amendments take this fact into account by providing that the court will adjourn proceedings for the purposes of reconciliation or mediation as the case may be only if both spouses agree. Sending a notice of alternatives to the respondent would only be worthwhile if, in the first instance, the applicant was prepared to engage in the process of reconciliation or mediation. It may be that this will become clear at the initial interview with the solicitor, if any. If at that stage the applicant is willing to engage in reconciliation or mediation, that would seem to be the appropriate time to broach the matter with the respondent and not when proceedings are being issued. I am not in favour of the Deputy's amendment.
I would like to ask Deputy Shatter, first in relation to the two month adjournment which is specified for cases where the parties wish to effect a reconciliation, does that period constitute a matter of jurisdiction of the court? In other words, if the two month period is acceded to by the court, does the court lose jurisdiction to deal with the case?
No. I do not see how that arises. What would happen is that the proceedings would be adjourned for two months or longer if the couple wish it to be adjourned, and when a case is adjourned it is adjourned. It means that the case can either be generally adjourned with liberty to re-enter if that is what both the husband and wife wish, or it may be adjourned for three months or four months, in which case it would then be in the court for mention and the judge would be told that things had worked out successfully or they had not worked out successfully, and the parties wanted to proceed into a hearing or whatever. That is the normal meaning of an adjournment.
If under that amendment and the legislation incorporating it, a judge on his or her own motion decided that it might be beneficial to the parties to have an adjournment to investigate the possibilities of a reconciliation and the judge invoked what judges would perceive as their general jurisdiction to adjourn, would that adjournment run contrary to the jurisdiction conferred in the Act or does the residual jurisdiction still stand?
Under the Minister's provision as drafted it would be open to a judge to say: "I am going to adjourn this case for the next 12 months", taking into account the provisions contained in subsection (5) of section 4 of the Minister's amendment. Under the provision that we have, a judge could not adjourn a case for longer than two months without the expressed wishes of the parties that he should do so.
In any circumstances?
In other words, he could not impose a view on them. That would be my understanding of that provision.
He could not adjourn the proceedings in any circumstances against the wishes of the parties — is that it — beyond two months?
Beyond two months.
So that the husband and wife who cannot effect a reconciliation and wish the matter to be dealt with by the court know that within a reasonable time it must be dealt with. A judge for his own reasons might look into his heart and say to a couple: "What God has put together let no man tear asunder. You are living in great disharmony. I believe you should both live together for another three years before I will hear your case." No judge can say that. Any lawyer who has worked in the area of matrimonial problems knows that there are some judges who will endlessly adjourn family problems because they do not want to make decisions and often create even greater chaos in the lives of the husbands and wives who find themselves in the court system.
A wife who has not been served until the last minute may intervene in proceedings where services have been dispensed with. Say a wife turns up after a long illness, or exile, or something like that; she comes into court and says: "I need to instruct a solicitor, I need to have medical reports, psychiatric reports, financial reports and generally prepare my case and to do that I need an adjournment of three months; and also there is a possibility of reconciliation," what is the judge to do?
Adjourn it for two months and ask the parties to go back to court and advise what the situation is. In the context of current court cases, with good judges, in that situation that is what would happen. They might adjourn for six or eight weeks and the couple would then come back to court and advise the court as to what the situation was.
You are saying that in all circumstances a court may not adjourn a case, for any reason, for longer than two months.
Without the consent of the couple.
Without consent.
We are talking about a couple who have very serious marital problems and where one or both of them are asking that they be resolved by a court, where there may be young children who are vulnerable and at risk and in those circumstances we are putting an obligation on the Judiciary to deal with such matters expeditiously and carefully without prolonged unnecessary adjournments, without the husband and wife being in agreement that there be such adjournments. I do not think that is unreasonable.
I would accept that, but you are talking about a situation where a court can deal with the pressing matters by way of interim orders. There are circumstances arising from the exigencies of the legal profession, as well as all other professions that might be involved, in which because of the workload of the judge who was sitting in the case, it might be impossible to find an adjournment date within the two months. In that exceptional circumstance, would the judge find that the court lacked jurisdiction to facilitate an adjournment beyond the two month stage where one of the spouses was not agreeable to an extension? In other words, I am putting it to Deputy Shatter that this two month period is being expressed in the legislation as a fetter on the general discretion of the courts to adjourn cases for whatever period would be appropriate in the estimation of the judge. I concede that an adjournment longer than two months is possibly an exception in the desirable state of things but in the practical course an adjournment of two months is a relatively short one especially having regard to the Circuit Court calendar where proceedings will be adjourned from May until October in any of the provincial towns with the summer vacation in between. That is the usual thing. I am putting it to Deputy Shatter that the proposal on two months is an excessively fine manacle on the Judiciary.
Put it to the committee.
I apologise. I might be forgiven for thinking that I am dealing only with Deputy Shatter because his contribution in terms of volume is quite impressive. I do not mean any disrespect to the rest of the members of the committee. I am merely talking in quantitative terms. I am putting it to the committee and I would be obliged for the assistance and advice of the committee and the Minister, including Deputy Shatter. Since Deputy Shatter is running with the ball very strongly, I am putting it to him. This is a particular ball I would be very worried about.
I cannot see the point Deputy Abbott is making because all these requests for an adjournment would be on the basis that there was a possibility of reconciliation.
No. In case Deputy Barrett goes off the line——
Are you dealing with amendment No. 34?
Yes. I want to clarify it. I am talking about an adjournment for any reason. I was very explicit when I said that there could be an adjournment for any reason, mainly for the purpose of enabling a spouse to compile a defence but there could be an adjournment for gathering information in relation to proof of adultery. In an uncontested case, there could be an adjournment sought in relation to tracing of people, publishing of notices.
Sorry. The point I am making to you——
I had indicated first.
Chairperson
I know. In fact, Deputy O'Donoghue had indicated before you, Deputy Taylor.
I am happy to have him go on.
Chairperson
Deputy Barrett is in possession.
The amendments we are dealing with — either the Minister's amendment, Deputy Shatter's amendment, or Deputy Taylor's amendment — are all dealing with adjournment of proceedings to assist reconciliation or agreements on separation. They are not dealing with the technical matters you are talking about.
That is not so.
Chairperson
Deputy Barrett.
I cannot be misrepresented. This has been going on before in committees where people started speaking on the basis of misrepresentations of what I had been saying. It is factually incorrect. Deputy Barrett ignores subsection (5) of the Minister's amendment to section 4, amendment No. 33 in so far as it states in subsection (5):
The power of adjournment exercisable under subsections (1) and (3) of this section is in addition to and not in substitution for any other power of adjournment exercisable by the court.
That is the point I am making.
That is implicit in my own one because my own one only curtails the power of adjournment if it is to effect a reconciliation, not any of the technical problems you are raising. It does not curtail the court's power at all beyond that.
I am glad of that clarification because Deputy Shatter certainly was not willing to give that clarification in his first response to it.
It is in the wording. The wording defines it in the context of an adjournment for the purpose of reconciliation.
Oh, yes.
That does not curtail the court's powers to adjourn proceedings if someone needs three months to carry out a defence or to have assessments carried out with regard to the welfare of children or valid psychiatric assessments. That is a different thing. It is in the context of judges who may take the view that, no matter what has happened in a marriage you must go and reconcile and we will adjourn the case for 12 months. This is to ensure that people who genuinely want to reconcile have every opportunity to do so and can, indeed, have their cases adjourned for as long as they wish, but it is also to ensure that judges are required, where reconciliation is not possible and where both parties want a case heard, to process their proceedings with expedition. All the court's inherent powers to adjourn remain. That is not affected.
I am glad of that clarification.
The essential difference between the Minister's amendment and Deputy Shatter's amendment is that in Deputy Shatter's amendment it is clear that both parties would not have to consent to the adjournment, whereas in the Minister's amendment both parties would have to consent to the adjournment. While there is merit in both amendments, it would be undesirable to give a judge discretion to allow an adjournment on the application of one party only where another party objected to the adjournment. The very fact that one party would object to such an adjournment clearly means that that party feels that the marriage cannot be reconciled. Any attempt at reconciliation would have to be a two way thing and both parties would have to wish to attempt to reconcile their differences. If that did not occur, I regard it as highly unlikely that a reconciliation could be effected. I take the view that a party in applying for an adjournment where the other party did not consent could do so for spurious reasons and, indeed, could do so with a certain amount of conviction and possibly even be believed and get such an adjournment. Accordingly, I would not be inclined to go along with that amendment at all. If there is to be a chance of reconciliation both parties would have to agree.
Deputy Shatter's amendment also leaves the door open to an application being made by one of the parties who is at fault and, perhaps grievously at fault, to obtain an adjournment without the consent of the other spouse. Deputy Shatter says this would be subject to whatever conditions the court might wish to impose. Many people have been bound to the peace for six months failing which they would get jail for two months and many people have ended up in jail. Any conditions you may impose can quite clearly be breached in any event.
I take issue with the point raised that it would not be possible under the Minister's amendment whereby both parties would consent to the adjournment to impose conditions because section 8 clearly provides that a court can make interim orders in relating to barring, etc. It is extremely doubtful that both parties would agree to an adjournment in order to effect a reconciliation unless both parties were satisfied that the conditions had been fulfilled prior to such an agreement in any event. I believe that if there is to be any chance of a reconciliation it would have to be a two way thing and, therefore, I go along with the Minister's amendment. I take Deputy Shatter's point in relation to section 4 (7), the new section proposed by the Minister. That would certainly have to be looked at again.
Looking at the comparisons between amendments Nos. 33 and 34, I agree that there should be some constraint put on the power of the Judiciary to adjourn the proceedings of their own volition. The Minister's amendment, at first sight, seems to provide that the consent of both parties is necessary but, when you look at subsection (5) of his amendment No. 33, it provides that the power of adjournment given is an addition to and not in substitution for any other power of adjournment exercisable by the court. I presume the court has an intrinsic power of adjournment, either on its own motion or otherwise, and that proviso leaves the matter rather openended. I am a great believer that these cases should be dealt with and should not be adjourned unless there is a very good reason for doing so and unless there are realistic prospects, having regard to the response of both parties, that the matter can be resolved otherwise than by court decree. That would certainly require a positive response from both parties. A positive response from one party would not do. I see some difficulties in both amendments and perhaps some compromise could be reached by taking in the best of both worlds. I like the idea at the beginning of the first part of the Minister's amendment of providing that the consent of both parties is necessary. However, leaving the court's intrinsic power of adjournment unfettered rather detracts from that and may be if some degree of the unfettered control of the powers of adjournment could be imported into subsection (5) and if that section of Deputy Shatter's amendment No. 34 was extracted and added in there possibly the amalgam might meet the needs of the situation.
Returning to the question of reconciliation and so on, amendments Nos. 27 and 28, and in the context of section 4, the Minister's response to my amendment appeals to me more than Deputy's Shatter's response. There were a couple of points the Minister made in that connection. The first one was that it would only cover the situation where a solicitor was, in fact, instructed on behalf of the respondent and, of course, that is true. Section 4, likewise, only covers the situation where there is a solicitor acting. Either section would have no relevance if it is a litigant in person without a solicitor. A solicitor probably would comply with the directives given in the Bill and issue the necessary advices as to the availability of mediation services and so on, if that were in the Bill. I cannot see that there should be any great difficulty about providing for certification. As the Minister said, the costs involved in doing that would be negligible. I do not think costs would escalate by putting an onus on solicitors to give a certificate stating that they had issued certain advices and given certain information regarding mediation and so on to their client. I do not think quite frankly that would cause any increase in costs.
I do not see that the Minister makes any point of substance there in saying that she is happy with the concept that the solicitor for the respondent, like the solicitor for the applicant, should give the necessary advices and information but is unhappy with the necessity for certification. However, I cannot say I feel that strongly about it because I accept the point and believe that solicitors would do what they had to do if that were in the Bill. If that is all that is required to have the amendment accepted I do not mind, but I would ask the Minister to have rethink on that, having regard to my view that no additional cost would be involved and it would put some degree of formality on the situation where there is a solicitor involved. It would be a relatively small matter to provide the written certificate either by the applicant's solicitor or by the respondent's solicitor.
So far as Deputy Shatter's amendment No. 28 is concerned, the element there that concerns me is putting this additional formal obligation on a person who is a litigant without a solicitor, in other words, let us say, a wife who finds that for one reason or another she has to go to court on her own. That is an important situation. To facilitate people who are in that position, we should try to keep the procedures as simple as can be. I do not think we should do anything in the Bill to cause more complexity, have yet more documentation that a litigant in person would have to provide. It would be difficult enough for a lay person to go as a litigant in person. Probably it would not be advisable for them to do it, but many of them find that for one reason or another they have to do it. If they do, the procedure should be kept as simple as possible. To put the additional burden here on a person who could not afford or who could not get their own lawyer, yet further documentation in addition to the originating document of application or the defence possession, is asking a bit too much and is rather unnecessary.
For that reason, as at present advised, I do not feel particularly happy about Deputy Shatter's amendment No. 28 and I think the matter would be adequately dealt with by the original section 4 covering the case of the applicant or my own amendment No. 27 covering the case of the respondent. The only question between the Minister and myself on that issue is the need for the solicitor's certification or not. I do not think that is a very major matter. Maybe the Minister would have a rethink on that issue.
Just to go back to amendment No. 33 and amendment No. 34, the intent in both amendments is obviously meritorious. The question is: which is the better? I agree with Deputy O'Donoghue that the Minister's amendment as in subsection (1) is preferable, for two reasons. The notion of reconciliation obviously means that both parties are at least willing to consider reconciliation. The wording in Deputy Shatter's amendment leaves the door open to one person, who is either genuinely interested in reconciliation or is anxious to abuse the court, to apply for adjournments. The Minister's amendment clearly envisages that both parties must agree that they want reconciliation. If we are going to have an amendment along those lines, it seems to me that the Minister's version is preferable.
The second reservation I have about Deputy Shatter's proposed amendment is his use of the word "reasonable". The word "reasonable" in litigation opens up all sorts of possibilities. It imports into legislation a nebulous concept and a concept which will be interpreted differently from judge to judge of what is a reasonable possibility of reconciliation. It is the opinion of the judge that is going to matter. In my experience at least — in saying this I am not in any way being critical of the Judiciary — human nature being what it is, one judge is going to differ from the next and so on down the line as to what is a reasonable possibility. I would like to see the word "reasonable" cleared out of the amendment altogether.
I want some elucidation on this. I refer to Deputy Shatter's amendment No. 28. I take very much the point that Deputy Shatter made in introducing this, and Deputy Taylor followed, that you can and will have situations where there may not be a solicitor. Considering the difficulty of women's economic independence and the difficulty of getting free legal aid, that could certainly be a possibility.
My understanding of amendment No. 28 is that either prior to or at the time of the service on the respondent of an application, these alternatives to separation proceedings can be served without a solicitor conferring it and being the intermediary for doing this, which would cover the fact that some people may not have a solicitor. Surely it is of the utmost importance that, the more knowledge, the more alternatives and the more options that are open to people in a situation like this the better. My reading of amendment No. 28 is that it actually serves and supports people who may not have a solicitor, who desperately need support because they have not got a solicitor but also putting it in a booklet form or some easy document, printed up, and that you would have notice of these alternatives to separation proceedings given so that they have as many options and as much information as possible. Am I understanding that amendment properly?
That is right.
Is that not the most practical and supportive of things we could do, particularly in the case where somebody cannot afford a solicitor?
I think there is some confusion coming in here. Dealing with amendments Nos. 27 and 28 first of all, I agree with Deputy Taylor that, first, it makes no sense to remove the certification procedure that he refers to in his amendment No. 27 and I have in the original section 4. To suggest that there is any additional cost involved in that is nonsense because there is provision in both Deputy Taylor's amendment and in my own section 4 that the rules of court will provide for the certification procedure. You have, in effect, a typed up certificate which a solicitor would have to date and put his signature on and date when the proceedings were served. That is the end of it and it is filed in court. Where the expense or difficulty in all that is is beyond me, but it would at least let a judge know that the procedures have been complied with. In so far as there is any purpose in imposing obligations to ensure that alternatives are presented in the context of my own section 4 and Deputy Taylor's proposed section 5, I really cannot understand why the Minister should object to a certification procedure.
Amendment No. 28 covers areas which Deputy Taylor does not in his amendment No. 27. The two amendments, through they are phrased as inserting a new section 5 in the Bill, are not necessarily mutually exclusive. They are, in fact, complementary in some ways. My section 4 is to deal with the applicant who is represented by lawyers. Deputy Taylor's section 5 is to deal with the situation where the respondent is represented by lawyers. Amendment No. 28 is, in effect, to deal with the situation where there are not lawyers involved and in particular where there are not lawyers involved acting for the respondent, maybe the husband or the wife, and also provides a means for giving information to the wife who initiates proceedings and who does not have lawyers.
Deputy Taylor suggested that amendment No. 28, if incorporated in the Bill, would add additional paper work of a complicated nature. That is not the case. There is the same confusion about that as there appears to have been about the certification process that both he and I envisaged in the two previous sections I referred to.
There is a solicitor involved there as in amendment No. 28.
That is right but in the context of amendment No. 28, subsection (3) says:
"Provision shall be made by Rules of Court for the form of the Notice of Alternatives to Separation Proceedings required for the purposes of subsection (1) of this section and for the certification required for the purposes of subsection (2) of this section".
The rules of court would set out what the form is and the rules of court would set out precisely what information would be here and there would be a printed document attached as rules of court. It would not entail any major work on the part of a solicitor if the solicitor acting for the applicant had to ensure that it was served or for a personal litigant, because it would be a printed form containing information. It does not require individuals to involve themselves in any great complex drafting. The rules of court can specify within the context of Circuirt Court areas, if necessary, particular information applicable to that Circuirt Court area just as currently rules of court apply different procedures in some instances for the service of proceedings in different parts of Circuit Court areas.
What is envisaged here is a printed document which would set out information and which would in a sense form part of the printed document used for the initiation of court proceedings because later on in this Bill there is a general provision for rules of court to set out the format of all printed documents under these proceedings. It would seem that, instead of adding any layer of complication, it greatly simplifies what is intended here. What everyone wants is to ensure that the maximum amount of information is provided to people who have marital problems so that they are aware of all the alternatives before they do battle in court. If we are all in agreement with that we are actually in a somewhat ironic situation. If my section 4, Deputy Taylor's proposed section 5 and also section 5 in amendment No. 28 were separate sections, each of them could be happily incorporated in the Bill as complementary provisions without being at variance with each other at all.
Deputy Taylor maybe unaware of just one small amendment that has already been made to section 4. My section 4 refers to "a solicitor, if any," and I am assuming that it would be possible — perhaps our Chairperson could confirm this to us — if we were to adopt Deputy Taylor's amendment to amend that to read "a solicitor, if any," etc. If we were all ad idem on what we are doing it would not add any layer of complication. It would greatly simplify matters for the solicitor to have the notice of alternative separation proceedings as a printed form.
It would make a lot of sense to incorporate section 4 in the Bill as it is together with the certification procedure — I do not believe the objection the Minister has raised to the certification procedure is a serious one — and to incorporate Deputy Taylor's amendment subject to the words "a solicitor, if any, acting". There would be a need to amend subsection (2) of Deputy Taylor's amendment. He did not address the issue of a solicitor who does not give information and where proceedings would have to be adjourned as a result even in circumstances where an applicant requires immediate relief. There is a problem of phraseology there but that can be dealt with on Report Stage. We could at the same time incorporate my own amendment No. 28 which deals with the position of people who are not represented and provides the necessary forms that solicitors could use pursuant to their obligations under the original section 4 and Deputy Taylor's proposed section 5. I suggest that we should consider dealing with matters along those lines.
The Minister says there is no need for a certification procedure because the court can check up on the position anyway under the Minister's amendment when the matter comes into court. Why not have the certificate on the file so that the judge knows what the position is immediately? That would facilitate judges looking at court papers before a case is heard. Currently judges require everything to be set down in writing, be it defences, answers, or replies in court proceedings so that they have a general view of what has and has not been done with regard to any case coming before them. The only major issue on which there is any substantial difference between us is with regard to the two proposed amendments to section 6. We could very well incorporate all of these other sections and improve the Bill in doing so. I am very concerned about a series of aspects in section 6.
Could we just stay on this for a minute and get rid of it? I accept what Deputy Shatter says to the extent that there is no contradiction or mutual exclusivity between my amendment, No. 27 and his amendment No. 28. We have to have some logic and consistency about the matter. The original section 4 and my amendment No. 27 dealing with the obligation on the solicitors for both parties to discuss the possibilities and so on, is clear and the certificate would be clear enough. The solicitor certifies that he has discussed with his client the possibility of this and told him that he could negotiate that and so on. He has told him. It was his duty to do so and he so certifies. We then come to the question of a person who is a personal litigant and what we are suggesting in amendment No 28 is that they should be involved. It may well be, for example, that a wife is the applicant and she says to herself: "The circumstances of my marriage are such that I do not want counselling. I am not interested in counselling. I do not want mediation and I am not interested in mediation. I am not interested in negotiating with him any separation deed because I know I could not and I do not want to waste time or have anything to do with it. I want the court orders and that is that".
Are we to put an obligation on a litigant in that situation, as this amendment would, to send with the application a notice telling her husband that marriage counselling agencies are available, mediation services are available and that a deed of separation can be negotiated. A notice would be sent to the husband of a wife whose mind is well made up that she does not want counselling, mediation and so on saying that all these things are available. That would lead to inconsistency. It is quite a different position from section 4 and amendment No. 27 where a solicitor is simply telling the person: "I am telling you these things are available. You may want them. You may not want them. I am doing my job. I have told you and that is it". We are dealing with a very different situation.
Taking the scenario outlined by Deputy Taylor, surely the consequences are that you will have a solicitor on behalf of the husband giving him the same certification? Are you suggesting that he has an advantage in so far as the solicitor will tell him: "Look, I will serve this on you and you do not have to take it seriously", but the litigant without a solicitor, by being presented with these options, is in some way discriminating even further against herself because the options have to be used?
No. You are dealing with two different categories. I fully subscribe to the need for a solicitor to point out certain situations to his client and say: "All these facilities are available. Would you like these to be followed up and, if so, we can defer the proceedings or arrange accordingly or whatever?" The solicitor certifies that he has fulfilled his professional task in that regard. That is fair enough. It may also be appropriate in the case of a personal litigant who is interested in counselling, mediation or negotiation a deed of separation. She would send a notice saying these are available. She tells her husband, thereby implying that not only are they available but that she is interested. In a case where she is not interested and when her mind is made up on these issues, she does not want these things and yet she is sending with her application a notice saying that these things are available, thereby obviously carrying with it an implication that she is open to these things, which is untrue because, in fact, in the particular case, she is not. Maybe the situation should be dealt with by providing an option on her part if, and only if, she is interested in these categories, to indicate that the door is open to her husband on any of these issues if he likewise is interested.
Just one point in relation to subsection (7) of the amendment, this is, the one which deals with whether any communication should be admissible in court. I understood Deputy Shatter to disagree with that concept. My view is that that concept should be maintained. I do not see that you can have the possibility of mediation unless the parties are absolutely satisfied in their minds that talks they may have with each other and with the mediator will be totally confidential.
Maybe I could sum up at this stage in relation to the Minister's amendment No. 33, which has been dealt with at some length and perhaps return to the very point Deputy Swift has made in relation to subsection (7) of that amendment. The Minister's amendment has three main purposes, if you like: first, to ensure that the court addresses itself to the question of mediation, not only reconciliation as is provided for in the Bill as it stands. I should say at this stage that the Minister has received representations on this particular point from the Family Mediation Service, which is the pilot scheme set up some time ago. The second purpose of the Minister's amendment is to bring about direct involvement by the court itself as far as alternatives to judicial separation are concerned.
The Bill provides that the court may address itself to the possibility of reconciliation, not mediation, only on the application of either spouse. These matters might not otherwise be addressed, for instance, where no solicitor has been retained by the applicant and that is, we feel, a serious flaw in the present Bill. Thirdly, which is the one Deputy Shatter has some difficulties with, subsection (7) of the amendment provides, as I said earlier, that any oral or written communication between a spouse and any third party in reconcilation or mediation proceedings is to be privileged and not admissible as evidence in any court. The Minister is supported in that approach, again by the Family Mediation Service and, indeed, by the Marriage Counselling Service.
In regard to that particular subsection, that provision is based on an equivalent provision in the Australian Family Law Act, 1975. The subsection, in effect, proposes an absolute privilege for the communications in question but I am sure the Minister would be prepared to look at this subsection again between now and Report Stage to see if there is any modification that might be required in the light of the comments of the members of the committee.
I wonder could we clarify one or two things of a procedural nature at this stage. It is my view that Deputy Swift was wrong in saying that I disagree with the principle that these communications should generally be privileged. I do not. I agree generally they should be and am careful to say that. It would seem to me that the Minister has not dealt with what I raised in dealing with subsection (7) which is a necessity to ensure that such communications are privileged, not only in the context of mediation or counselling that takes place after court proceedings have been adjourned but generally that such communications should be privileged, not totally inadmissible, and that the privilege should extend beyond what the Minister talks about in this area but there needs to be exceptions to it.
The necessity to extend the privilege would apply not just to judicial separation proceedings but would apply across the board to all family law proceedings and in the context of Part IV of this Bill there is provision made to introduce some general amendments in the area of marital law and family law in so far as they are going to be affected by the approach taken in the Bill. Cutting through the sort of way we make these comments in committees such as this where people say we really want to get our amendment through but we know we need to look at something again, I am wondering about two things because I agree that there should be a possibility for cases to be adjourned for mediation purposes. In the context of the Minister's proposal in amendment No. 33, is it possible for that to be adopted with subsection (7) taken out of it so that we could come back at Part IV of the Bill to deal with a more detailed proposal generally to deal with the issue of privilege?
The issue I raised of ensuring that the court can insert conditions where necessary can be dealt with on Report Stage. I am not unhappy about that. I would be unhappy that we deal with subsection (7) now and that when we come to Part IV of the Bill when we have an opportunity to deal in a more detailed way with the issue of privilege we might not be able to do so because of this subsection (7). Clearly it will be some little time before we reach Part IV and there is a need to deal carefully with that. I am anxious to clarify that particular aspect of matters.
Chairperson
The situation is that procedurally we have before us at the moment amendment No. 20 and we have to deal with that first. There has been adequate discussion on amendment No. 20 to section 4, so I will now put the question in the name of the Minister and Deputy Alan Shatter, that the amendment be made.
Amendment put and declared carried.
Amendments Nos. 21 and 22 not moved.
I move amendment No. 23:
In page 6, lines 18 to 24, to delete subsection (3).
Chairperson
This amendment has already been discussed with amendment No. 20.
Perhaps the Minister would withdraw that amendment, the one about the certification. This is the one requiring the solicitor to provide the certificate.
No, we are not prepared to withdraw that amendment.
Amendment put.
The Special Committee divided: Tá, 6; Níl, 7.
|
Tá |
|
|
Abbott, Henry. |
Kitt, Michael P. |
|
Coughlan, Mary T. |
O'Donoghue, John. |
|
Geoghegan-Quinn, Máire. |
Swift, Brian. |
|
Níl |
|
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Barnes, Monica. |
Shatter, Alan. |
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Barrett, Seán. |
Taylor, Mervyn. |
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Flanagan, Charles. |
Taylor-Quinn, Madeline. |
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McCartan, Pat. |
Amendment declared lost.
Amendments Nos. 24 to 26, inclusive, not moved.
Section 4, as amended, agreed to.
NEW SECTION.
I move amendment No. 27:
In page 6, before section 5, to insert the following new section:
"5.—(1) A Solicitor acting for the respondent in an application for a decree of judicial separation shall, as soon as possible after receiving instructions from the respondent—
(a) discuss with the respondent the possibility of reconciliation and give to him the names and addresses of persons qualified to help effect a reconciliation between parties to a marriage who have become estranged, and
(b) discuss with the respondent the possibility of engaging in mediation to help effect a separation on an agreed basis with an estranged spouse and give to him the names and addresses of persons and organisations qualified to provide a mediation service, and
(c) discuss with the respondent the possibility of effecting a separation by the negotiation and conclusion of a separation deed or written separation agreement.
(2) An Entry of Appearance or a Notice of Intention to Defend an application for judicial separation shall be accompanied by a certificate by the solicitor, if any, acting on behalf of the respondent, that he has complied with the provisions of subsection (1) of this section and where a solicitor does not so certify, the Court may adjourn the proceedings for such period as it deems reasonable for the respondent's solicitor to discuss with the respondent the matters referred to in that subsection.
(3) Provision shall be made by Rules of Court for the certification required for the purposes of this section.".
Chairperson
Is the Committee agreeing to insert the words "if any," after "Solicitor" in subsection (1)?
Amendment as amended put and agreed to.
I move amendment No. 28:
In page 6, before section 5, to insert the following new section:
"5.—(1) Either prior to or at the time of the service on a respondent of an application for a decree of judicial separation there shall be served on the respondent a ‘Notice of Alternatives to Separation Proceedings' which Notice shall refer to—
(a) the availability of marriage counselling agencies which can help estranged spouses to effect a reconciliation.
(b) the availability of mediation services which can help estranged spouses who intend to separate to effect a separation on an agreed basis,
(c) the possibility of effecting a separation by the negotiation and conclusion of a separation deed or a written separation agreement.
(2) An applicant for a decree of judicial separation or the solicitor, if any, acting on his behalf shall certify to the court that he has complied with the provisions of subsection (1) herein and the court shall not process any proceedings issued under this Act in the absence of such certification save where the whereabouts of the respondent are unknown the court may dispense with the necessity for such certification provided any conditions imposed by the court for notification to the respondent of the issuing of such proceedings are complied with.
(3) Provision shall be made by Rules of Court for the form of the Notice of Alternatives to Separation Proceedings required for the purposes of subsection (1) of this section and for the certification required for the purposes of subsection (2) of this section.".
Amendment put.
The Committee divided: Tá, 6; Níl, 7.
Tá
- Barnes, Monica.
- McCartan, Pat.
- Barrett, Seán.
- Shatter, Alan.
- Flanagan, Charles.
- Taylor-Quinn, Madeline.
Níl
- Abbott, Henry.
- O’Donoghue, John.
- Coughlan, Mary T.
- Swift, Brian.
- Geoghegan-Quinn, Máire.
- Taylor, Mervyn.
- Kitt, Michael P.
Amendment declared lost.
Amendments Nos. 29 to 32, inclusive, not moved.
Question proposed: "That section 5 stand part of the Bill."
There is some confusion as to what section we are talking about because we have accepted section 5, which is Deputy Taylor's section 5. We have not actually discussed section 5 of the Bill itself. We have amendments Nos. 33 and 34 which will become a new section 6. Perhaps we should take section 5 now and come back to amendments Nos. 33 and 34 later on.
Chairperson
I am putting the question that section 5 of the Bill stand part of the Bill.
Which section 5 are we talking about?
Chairperson
Section 5 of the Bill itself is before us now.
No, we have inserted a new section 5 which would make the old section 5 into section 6.
Chairperson
I am putting the question that section 5 stand part of the Bill. Is that agreed?
Which section 5 are you talking about?
Chairperson
Section 5 of the Bill itself.
We are opposed to that.
Why does the Minister object to the section?
I am opposing section 5 for the following reasons. The section proposes to bar applications for a decree of judicial separation within one year of marriage except where this would be unjust and unreasonable. It would make the present law on obtaining a decree more restrictive. The safeguards in this provision would appear to be more appropriate to divorce where the status of the parties is affected by the granting of the decree — they are no longer spouses, but in the case of a separation the decree can be discharged and the need for a similar safeguard is not, it seems to me, the same. Couples can, of course, separate under a deed of separation without any waiting period. In any event, there are other safeguards in the Bill. For example, the court can consider counselling and mediation services before determining an application for a decree of separation. The one year provision would appear to have been inserted in the context of a requirement to prove irretrievable breakdown of a marriage but even then I do not think there is any necessity to have this provision because, as I said, there are other safeguards in the Bill.
I find it extraordinary that this provision should be opposed by the Minister. During the course of the debate some weeks ago we had members of the Minister's party taking about "quickie" separation decrees and worrying that people might get separations too easily. This Bill is concerned with ensuring that if a couple in the very early weeks of their marriage, have major problems they do not rush into the courts. It is designed to ensure that at least 12 months would elapse before either a husband or wife would look for a separation decree so that they would resort, if they have very immediate and serious difficulties in their marriage, to the alternatives that are available, such as marriage guidance counselling. I find it extraordinary that the Minister should oppose a provision which provides that generally neither a husband nor wife can go to court to get a separation decree within 12 months of marriage. The Bill provides that in exceptional circumstances they can do so — if someone suffers serious violence they can do so but I find it quite extraordinary that Fianna Fáil and the Government should oppose this provision. All I can say is that in the overall context of this Bill there is a degree of political schizophrenia breaking out which is extremely difficult to explain. I suppose it is a particular condition which is difficult to explain. Anyone who is serious about ensuring that people do not hastily run to the courts when they have marital difficulties would find it very difficult to oppose this section.
I am equally as surprised as Deputy Shatter with the approach of the Minister on this matter. The more I listen to some of the arguments and reasons being advanced the more I am coming to the conclusion that what is sought to be contrived here is that at every available opportunity the word "divorce" is to be drawn into the discussions and deliberations on this Bill. I can see the position of Fianna Fáil becoming more and more divisive as the days go on. The point must be made that we are not talking, and cannot be talking, about divorce. To suggest that a provision as eminently reasonable and as conservative as this is in some way unacceptable to what we are talking about confounds me entirely. We are seeking in the general thrust and development of this legislation to achieve a situation where, before any order at all is made by court, everything is done to try to preserve marriage and to reconcile differences where they exist and to ensure that a régime is set in place to facilitate that. I suppose this section is as a result of a situation in this country where remarkably young people can marry, according to our law. Our law allows people to marry at much too early an age. That is something that the Catholic Church, as the major Church of the country, and legislators do not seem to be worried about at all. I have never heard it being advanced in any arguments by those concerned about the permanency or sanctity of marriage the fact that we can allow 16 year olds and upwards marry. This section, in some indirect way, addresses that remarkable situation where we can find very immature people, often because of social circumstances and other factors, being bullied by Church and parents into marriage but here, recognising that people can, for many different reasons, enter the marriage for all the wrong reasons, not wanting to give them the opportunity when they so easily move into it to move out of it. It is a very sensible piece of legislation. I am amazed but I am even more annoyed when I hear the context in which the objections are raised. The word "divorce" comes into it again. It has nothing to do with what we are talking about here and I wish we would get on with talking about what we are here to deal with.
There seems to be a certain inconsistency here on the part of Deputy McCartan and Deputy Shatter for the simple reason that they have expounded the view again and again here over the past few months that people would not go into court to obtain a judicial separation unless there were very serious difficulties with their marriage and unless they really believed that they required it. This section runs contrary to the argument which was presented all along which was that people would not go into a court to seek a judicial separation unless they really and genuinely believed that there were serious problems with their marriage. This section says to the parties that you could not have serious difficulties in the first year of your marriage outside of difficulties which are of a serious and exceptional nature and, therefore, you cannot get a judicial separation in the first year of your marriage. It runs contrary, therefore, to section 2 of the Bill which provides the direct opposite. For example, it provides that a person may obtain a judicial separation on proof of desertion.
One of the major objections to this section would have to be that it is moderate on sections which appear in divorce legislation. Whether people are amazed or not amazed or whether they agree or they do not agree, the facts are that it continues a trend which has been apparent throughout certain aspects of Deputy Shatter's Bill to date. Perhaps at this stage the people on the Opposition side would indicate whether or not they believe that people would run into court and seek a judicial separation on some whim or whether, as I believe, they would not do so unless there were very grave reasons for doing so. We have been completely consistent on this and this section seems to run contrary to earlier arguments which I have heard from the Opposition, in any event.
I just do not see that. Of course, the Minister is quite right. The parties could enter into a deed of separation. That is quite true. There is quite a difference in kind between court orders of divorce a mensa et thoro, which is what we are talking about here; there is a difference in kind between court orders setting out positions and, the consequences that apply from a deed of separation. In many respects the consequences may be the same but there is a certain formality, there is a certain finality about court orders that have been given after the hearing of a case and the consequential and ancillary orders that would apply.
Are the Fianna Fáil party here saying that a marriage must not be well tried out at least for a year? Who can say? It is not a matter of having difficulties in a marriage. Of course you could have a difficulty in a marriage after a month. You can have difficulties in a marriage after 10 years or 20 years, but I think it is fair to say that, before you would allow the finality of a court decree and all the formality that goes with that, at least the spouses who have entered into a serious situation — and often know they are entering into a serious situation — would know that for one year they have to try this relationship and try to get over difficulties that they may encounter and that most people, if not all people, do encounter to a greater or lesser extent in marriage. Marriage is not an easy thing but it has to be well tried. The idea is that a licence should be issued in the Bill that, after a very short period, where it could not be said that the parties have gone about the business of making a marriage work and working to make it work, it should be open to them to go and get a court order, not an agreement, but a court order terminating their responsibilities to each other to live together and the other consequences that flow. I do not understand the reasoning behind this. One has to have a serious approach to this situation. A basic serious approach requires that we, as legislators, make it clear from the outset and signal by marker, by having this provision in the Bill, that for one year this legal procedure for court orders will not be open to the parties and that they should think of that when they enter into the relationship and think of that during that period of a year when they may be having some difficulties.
It is an eminently reasonable provision. It would be throwing caution out of the window altogether to leave it open to the parties to apply, a couple of months after their marriage, and say: "All right. We have been married for a couple of months. That is it; finished. We do not have to try any more. We can go and get our court order and that is the end of it. Goodbye." That is going altogether too far and the basic period of one year is reasonably required.
I would like to refer also to the fact that I do not understand the reasoning behind the Government's move on this. Anybody who has any dealings with those who are having difficulties in their marriage, whether it be in the legal framework or in counselling, knows it is an accepted fact that the first year of marriage is one of the most difficult periods in a marriage. Of those marriages that break down, the statistics show that a very great number break down in the first year and that one of the reasons for that is that people are not given the support they need in that first year. This provision is admirable in that it attempts to safeguard the existence of that marriage for at least one year so as to give the couple a further reason to continue and try to work at it. There is no doubt that the period of adjustment in any marriage can last beyond one year. It can be somewhat less but it can be very traumatic and it can lead to people believing they are never going to make it. It is very sensible to have this provision here. It is not all-enveloping. It allows for some exceptions. There will be some exceptions, for violent reasons, for other reasons, where it will be necessary to obtain a separation within a year.
The general rule should be — and I am glad that this Bill is actually backing it up — that at least one year elapses before you go looking for a separation. We are, in this Bill, attempting to safeguard marriage and to allow those who have not been able to have a successful marriage the dignity of moving out of that in a reasoned and as painless a way as possible. The whole business of marriage breakdown is painful enough. In doing that, we are safeguarding marriages of others as far as we can. So this particular provision, I would favour.
I am disappointed that the proceedings of our meetings are not at least being kept up to date and available for us as we come in. I do not visit any criticism on the staff. I know the difficulties they are working under. It is something I would have to ask you to look into so that we can be kept up to date.
Chairperson
The situation is that quite a number of the administrative staff at the moment are actually indisposed. A number of the staff are out sick and all the others are very overworked at the moment. Normally, Mr. Dwan would not be servicing this committee. In fact, Miss Mathews is secretary to the committee. There is quite a lot of pressure at the moment.
Can I ask that, if necessary, at the next meeting we set aside from 6 o'clock to 6.30 p.m. to agree dates for future meetings? We have had a number of discussions about this but it has not been satisfactory. We are running out of time to solve that problem and we must do it at the next meeting.
Chairperson
I understand that at the last meeting it was agreed that there would be a discussion on this. We have attempted to have discussions after 6 o'clock here at other times and they did not take place. Maybe we should do it at 5.30 p.m.?
I suggest we agree that the next meeting be extended to 6.30 p.m. if necessary so that we can resolve any matters that have to be resolved with regard to future meetings.
Chairperson
Is that agreed? Agreed.
Progress reported.
Committee adjourned at 6 p.m. until 4 p.m. on Wednesday, 15 June 1988.