I will deal now with the substance of the amendment. There is a problem with this amendment which I will explain. The Minister previously talked about the need for a degree of certainty in people's lives. There was no doubt that what he said about inheritance would have produced a certainty and that nobody, having got a decree of separation, would retain his or her inheritance rights. The type of certainty he was talking about was not a certainty that appealed to me or to the majority of the members of the committee. There is a need for a degree of certainty in people's lives in particular when marriages break down. There is a need to ensure that, many years after a marriage has broken down and a couple have gone to court and had their matrimonial dispute resolved by the courts, it cannot be totally reopened.
The Bill as originally drafted sought to retain the following position. As the law currently stands, a wife or a husband may have attained a decree of divorce a mensa et thoro, a decree of separation, and following the granting of the separation decree, the courts would normally make an alimony order although they may have made a maintenance order under the Family Law (Maintenance of Spouses and Children) Act, 1976. It is always, under the current law, open to a wife who has an alimony order or a wife who was not originally given one, to come back to court later on and look for alimony or for increased alimony when there is a change in financial circumstances.
When this Bill is enacted, there will be many couples who, in years gone by, some going back two or three years and some going back 15, 20 and 25 years, could then have got a divorce a mensa et thoro and it may be that the husband is paying a sum of maintenance to his wife by way of support payment. Both the husband and wife would have totally rearranged their lives on the basis of court orders obtained by them long ago. The husband and the wife may each have become owners of property or acquired new property. One or other of them may have different relationships, or one or other may be in different financial circumstances. The protection the current law gives to the wife is that if she is dependent she can still come back to court and look for increased maintenance. She is protected to the extent that she knows that the husband cannot make a claim as against her property during her lifetime. The husband is protected under the law knowing that she cannot make claims to his.
It seems that the problem with this amendment is that it seeks to unravel the impact of all existing court orders and seeks to unravel the lives of every couple in the country who have gone through the court system and who have already attained a decree of divorce a mensa et thoro. The Bill as originally drafted and the particular provision the Minister referred to in the later section relating to the courts, ensured that following the passage of the Bill any wife who had an alimony order would be able under the new provisions of the Bill to seek to vary her maintenance or her alimony order or she would be entitled to go to court and look for maintenance. This amendment would create a position where if, for example, a decree of separation was granted 20 years ago, a wife could now come into court and claim ownership rights in a variety of different properties. It might be a family farm or any property that the husbands had acquired in the intervening period of 20 years when the parties were living apart, alternatively the husband could come in and claim rights in property that the wife had acquired in the intervening period.
With regard to the laws relating to civil damages, some time ago, for example we changed our laws as to the maximum amount of compensation that someone could get for distress caused as a result of injury to a close relation. It is not normally the position that, once somebody has been through the courts, they can go back to court to look for an increased sum because the law has changed. There is a problem with this provision. I could argue that it might be right that in certain circumstances someone should be able to make such a claim as well. It is not all black and white. There is a problem with it. As this provision is currently drafted it means where a decree of divorce a mensa et thoro was granted 20 years ago, one of two people whose marriage ended and who had little or no contact with each other in 20 years, could now go back to the courts and start making claims to the property of the other. The Minister may say that the courts would not necessarily grant those claims. It is correct to say that the courts may not, but under these provisions that is not certain. It could mean that every couple whose marital controversy has been resolved between them under existing law, be it under the law as it was last year or the law as it was 20 years ago, could be put in a position where one forces the other to refight a marital battle. That might be of great benefit to lawyers. Lawyers might start sifting through their files in their offices to see if they could find the names of every husband and wife they have represented for the last 40 years to write to them and say: “You might not have done so well 30 or 40 years ago but we can get you the extra few bob now”. It is a recipe for creating all sorts of problems in the lives of people who have for long resolved their matrimonial controversy. That is why I am concerned about this provision. The Bill as originally drafted preserves the rights to alimony, but it does not allow people whose problems have been, as they understood it, for once and all time resolved by the courts to reopen old wounds. The problem with this is that it goes further than the current Bill prescribes and will, I think, result in the opening of many old wounds.
In all of the representations I have received about this Bill it has not been suggested to me by any group or organisation that it is desirable that this Bill should have that effect, that it will allow people to reopen matrimonial controversies which have long since been dealt with by the courts. One could argue that in some instances it would be just that people should be allowed to do so because this Bill provides for additional protections. There is a problem here. Perhaps we should think about this on Report Stage and allow the courts to consider again the circumstances where decrees of divorce a mensa et thoro may have been made within three, four or five years of the coming into force of the Bill as opposed to allowing people to go back many years. Maybe as a matter of policy we should not allow it to be reopened. What appears to be a simplistic provision could open a hornets’ nest of major family problems for many people. Because of that I oppose this provision. I feel that rather than introducing certainty it will sow confusion.
Finally, it will provide the foundation to give the small number of people who want to engage in an ongoing matrimonial war of attrition with their spouses with an additional excuse to drag distraught wives and distraught husbands into the courts. It may be that at the end of it all those people will not benefit by way of court orders but it will put those distraught wives and husbands through the trauma and expense of refighting old matrimonial battles they thought had long since been dealt with.
