I move amendment No. 15:
In page 12, lines 27 and 28 to delete "section 14 (1) (m)" and substitute "section 17 (a) and (b)".
SECTION 18
Amendment agreed to.
I move amendment No. 16:
In page 12, paragraph (a), line 34, to delete "parties to a marriage" and substitute "spouses".
Amendment agreed to.
Section 18, as amended, agreed to.
NEW SECTION.
Chairperson
Amendment No. 17. Amendment No. 38 is related. I propose to take amendments Nos. 17 and 38 together. Is that agreed? Agreed.
I move amendment No. 17:
In page 12, before section 19, to insert the following new section:
"19.—(1) In deciding whether to exercise its powers under section 14, 15, 16 or 17 (a) or (b) of this Act and, if so, in what manner, the court shall seek to ensure that such provision is made for any spouse and for any dependent child of the family as is adequate and reasonable having regard to all the circumstances of the case.
(2) As regards the exercise of the powers of the court under section 14, 15, 16 or 17 (a) or (b) of this Act in relation to a spouse, the court shall in particular have regard to the following matters—
(a) the income, earning capacity, property and other financial resources which each of the spouses has or is likely to have in the foreseeable future;
(b) the financial needs, obligations and responsibilities which each of the spouses has or is likely to have in the foreseeable future;
(c) the standard of living enjoyed by the family before proceedings were instituted or before the spouses separated, as the case may be;
(d) the age of each spouse, the duration of the marriage and the length of time the spouses lived together;
(e) any physical or mental disability of either spouse;
(f) the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family, including the contribution made by each spouse to the income, earning capacity, property and financial resources of the other and any contribution by looking after the home or caring for the family;
(g) the effect on the earning capacity of each spouse of the marital responsibilities assumed by each during the period when they lived together and, in particular, the degree to which the future earning capacity of a spouse is impaired by reason of having relinquished or foregone the opportunity of remunerative activity in order to look after the home or care for the family;
(h) any income or benefits to which either spouse is entitled by or under statute;
(i) the conduct of each of the spouses, if that conduct is such that in the opinion of the court it would in all the circumstances be repugnant to justice to disregard it;
(j) the accommodation needs of either spouse.
(3) The court shall not make an order under section 14, 15, 16 or 17 (a) or (b) of this Act for the support of a spouse where the spouse has deserted and has continued to desert the other spouse up to the time of the institution of proceedings for a decree of judicial separation unless, having regard to all the circumstances (including the conduct of the other spouse), the court is of opinion that it would be repugnant to justice not to make such order or orders.
(4) As regards the exercise of the powers of the court under section 14, 15 or 16 of this Act in relation to any dependent child of the family, the court shall in particular have regard to the following matters—
(a) the financial needs of the child;
(b) the income, earning capacity (if any), property and other financial resources of the child;
(c) any physical or mental disability of the child;
(d) any income or benefits to which the child is entitled by or under statute;
(e) the manner in which he was being and in which the spouses expected him to be educated or trained;
(f) the considerations mentioned in relation to the spouses in subsection (2) (a), (b), (c) and (e) of this section;
(g) the accommodation needs of the child.
(5) In this section ‘desertion' includes conduct on the part of one spouse that results in the other spouse, with just cause, leaving and living apart from that other spouse.".
Amendment No. 17 would replace sections 19 and 20 with some changes. The main changes provided for in the amendment concern the following. Section 19 as it stands merely sets out the considerations to which the court must have regard when making financial and property orders but it does not provide an overall objective as to what is to be achieved by taking those considerations into account. Subsection (1) of the new section 19 does that by specifically requiring the court to exercise its powers to make financial provision and property orders in a manner which shall ensure that such provision is made for any spouse and any dependent child of a family as is adequate and reasonable having regard to all the circumstances of the case and specifically the matters set out in the new section. That is an important statutory objective which the Bill does not have at present.
Section 20 as it stands requires the court to take acount of conduct when ordering maintenance but there is no similar provision in the Bill with regard to the making of property transfer or lump sum orders. The amendment seeks to rectify that position by providing a general rule in subsection 2 (1) of the new section 19, that is, that conduct generally would be a consideration in making maintenance, lump sum and property orders where it would in all the circumstances be repugnant to justice to disregard it. Subsection (3) of the new section 19 makes desertion a bar to all forms of financial relief unless the court is of the opinion that taking all the circumstances, including the conduct of the other spouse, into account, it would be repugnant to justice not to order financial relief.
Desertion requires a specific provision in the Bill because, by definition, it involves a deliberate repudiation of the marriage in a way which other conduct need not. However the provision proposed in subsection (3) is not inflexible. It takes account of the situation whereby a spouse, although held to be in desertion, is not altogether to blame. In that event the court would not have to refuse financial provision for that spouse. This approach constitutes a significant change in the rule regarding desertion in matrimonial law.
Amendment No. 38 changes the rules of conduct in relation to the making of maintenance orders under the Family Law (Maintenance of Spouses and Children) Act, 1976. The amendment proposes new conduct rules similar to those in new section 19 of the Bill under amendment No. 17 in relation to financial relief orders in separation proceedings.
This, among other areas, was one of controversy and I am pleased we managed to reach ageement on this. I am pleased that in the context of section 19 there will be a full recognition given to the work done by the wife in the home and also a full recognition given to the contribution that the dependent spouse, who is most often the wife, makes to the overall family welfare, property ownerships and financial resources. This should be a provision that will be of some considerable importance. I think it will be recognised as an historic contribution to our law in the future. It is the first statutory recognition of the role played by the wife who works in the home and who does not have an independent income.
The agreement we have reached which tries to ensure that unless matrimonial misconduct of a very serious nature is identified as causing the marriage breakdown, the courts will not be compelled to involve themselves in raking over the coals of a broken marriage to label someone as guilty or innocent in the financial and property areas. I am pleased we managed to resolve this particular aspect of the Bill.
The change in the law in relation to desertion is a fundamental change of approach to what is the position under the current law. It means that where a spouse has left the family home in circumstances where clearly a marriage has been in great difficulties and the couple are incompatible and where such spouse is held in desertion because the other party's behaviour is not regarded as sufficiently serious, to warrant that spouse leaving the family home, the spouse who does leave and who most often is the wife will not be automatically excluded from financial support or property orders. That is a very welcome reform. It will be welcomed by many who work with the problem of marital breakdown who often regard legalistic labels of desertion as an unrealistic assessment of the background to what results in a marriage collapsing.
Yes, this is an historic occasion. I would like to welcome this section and I know women all over Ireland, and particularly those in the home, will welcome it. It is an acknowledgement of value and contribution that has not been acknowledged to date. I congratulate everybody concerned in acting in such a positive manner. Those sections have gone a long way to creating a very positive improvement in marriage law but also recognising the contribution and work of women in the home.
The legal position up to now added very much to the humiliating and devalued position of women in the home when they were in this particular situation. I would like to think that with regard to the marriage property Act, in cases of non-litigation we would also have the same acknowledgement of the work in the home by the Minister and his Department.
Amendment agreed to.
Sections 19 and 20 deleted.