First, I should like to deal with what the Minister said, which is to suggest that someone who has been in desertion for a lengthy period of time would retain inheritance rights. Under the provisions of this Bill it is open to a spouse in circumstances where they have been deserted for at least one year to apply to the courts for a decree of separation. If they apply to the courts and get their decree of separation it will be open to the courts under the provision we dealt with under section 12 to rule that someone who has deserted the other spouse loses their inheritance rights.
The Minister talked earlier about the need for certainty. After this Bill has been passed there will be a clearer provision to resolve the problems in relation to inheritance rights and desertion than we have ever had since the enactment of 1965 Succession Act. In effect, any spouse who has been deserted for a year or more will be able to get a court order granting them a separation decree and terminating the deserting spouse's succession rights by application under section 12.
The current position is that if you are a deserted spouse, or if you believe you are a deserted spouse, there is no court order you can currently get which will guarantee that the deserting spouse has lost their inheritance rights. Secondly, under the existing law the desertion must be for a continuous period of two years preceding the death of the deceased spouse. Under the existing law a spouse can be in desertion for 20 years, hear his wife is dying and return home and move in with her and stay remaining in the home for a few months before her death. Because no question then arises of desertion for a continuous period of two years before her death, that spouse who had disappeared for 20 years gets his inheritance rights. To suggest that the current law either provides protection for deserted wives or deserted spouses or any degree of certainty in the area of inheritance, I am afraid is simply not the case.
The current law, in fact, provides no real protection for a wife who is deserted because the deserting husband can always return at a time when she is terminally ill, move into the family home and there may be nothing she can do about it and he will regain his inheritance rights. As a matter of practice, if a spouse dies and the surviving spouse claims inheritance rights, it is virtually impossible to establish that the spouse who makes such a claim is in desertion, because even if the couple have been living apart the spouse who is alleged to be in desertion may claim that he or she left the family home because of continual assaults on them by the deceased spouse and there may be nobody who can give contrary evidence. The deceased spouse is dead and cannot give evidence to the court to say the allegations made are incorrect. In circumstances where you leave, for example, due to violence, desertion does not arise.
The reality is that the desertion protection that is allegedly contained in the Succession Act, 1965, does not work in practice. Evidence of the fact that it does not work is borne by, as I said earlier, no more than two court cases since the enactment of the 1965 Act in which spouses have been deprived of their inheritance rights on the desertion issue. This Bill rather than leaving deserted spouses vulnerable to inheritance claims, will provide a mechanism whereby they can cut off a deserted spouse from getting inheritance rights; will provide a protection against the deserted spouse moving back into the home at a time when they are terminally ill; will provide a great deal more certainty in the area of inheritance laws, and a great deal more protections than currently exist.
To take into account the fact that there will be many people currently in desertion who will not within the early years of this Bill seek such a decree, section 30 (c) specifically preserves the current law as it is for a period of five years after the passing of the Bill. The effect of that section is that if somebody gets a decree of separation following the passage of this Bill the deserting spouse under section 12 can have a decree made which results in the loss of inheritance rights or if they sit on their rights and do not go to court for some years they will still for five years from the passage of this Bill be allowed to rely on what is a very vague protection contained under section 120. That five-year period was deliberately put in so as to ensure that it could not be suggested that existing protections were being undermined overnight. The point must be made that the existing protections are more theoretical than real.
The other two things that arise under section 30 which the Minister opposes is that the section preserves two aspects of the current law: currently the position is that if the decree of divorce a mensa et thoro has been granted the person against whom it has been granted losses his inheritance rights and that position is preserved so as not to upset the existing legal position of couples in respect of whom decrees have been granted. The legal theory is that if somebody got a decree for restitution of conjugal rights and it was not complied with, the person who has not restored the conjugal rights loses their inheritance rights. That is more theoretical than real. I do not think there has been that type of action brought before our courts for over 20 years.
Section 30 has a whole series of inbuilt protections. For the deserted spouse this section, in conjunction with the earlier sections I mentioned, provide a great deal more protection than exist under the current law or than are contained in section 120 of the 1965 Succession Act.
