Léim ar aghaidh chuig an bpríomhábhar

Dáil Éireann díospóireacht -
Wednesday, 28 Nov 1956

Vol. 160 No. 11

Married Women's Status Bill, 1956—Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time".

The first thing I should like to say is that I welcome the Bill in its general terms and its general purpose, particularly in so far as it provides consolidation and re-enactment of what had been a very considerable number of scattered statutory provisions. Secondly, I do not think it would be out of place to state that this, like other law reform Bills which have come before the House recently, in its form and in the way in which it is presented to the House and in the manner in which the House has been assisted in trying to follow it, seems to me to be an excellent production and something in respect of which the Minister and his officials deserve considerable gratitude from the House.

With regard to the general provisions of the Bill, I think it is only proper that straightaway I should make clear a point of view which occurs to me as being of considerable importance in principle and arising from the provisions of this Bill. Section 2 of the Bill, as was explained by the Minister and also by the Attorney-General, at the commencement of the Second Reading, is, to a certain extent, considered desirable by reason of a situation which has existed up to this in which a husband could not sue his wife or a wife sue her husband for a motor accident. As probably many members of the House are aware, great hardship has occurred on occasions to individuals by reason of that rule of law, particularly as very few laymen were aware of it and, accordingly, very few laymen were in fact insured against accidents caused by their own negligent driving to their wife while a passenger in their own motor-car and the very absurd and very tragic situation arose in which a man driving his own motor-car, as he thought, comprehensively insured and paying a premium corresponding with that comprehensive insurance, discovered that, whereas any stranger would be fully covered for injuries or loss or damage suffered by him or her as a result of accident, the man's own wife, who might suffer very serious injury and who might be involved in very considerable expense as a result of a motor accident, could not recover against the insurance company and, of course, could not recover against her husband.

That is a situation which, obviously, should be remedied. Whilst there does not readily occur to me any other situation in which hardship was being imposed by the pre-existing rule of law that a husband could not sue his wife in tort or the wife could not sue her husband in tort, I accept that there may be other instances where that rule created hardship.

The Attorney-General in his speech on the Second Reading made it clear and the Minister made it clear that various alternative methods of correcting the anomaly and the hardship which arose from this rule had been considered and that eventually this particular method enshrined in Section 2, sub-sections (1) and (2), was decided upon.

I do not think we should slavishly imitate in law reform any particular legal system and I am glad to say that in this Bill, for instance, as in several of the other Bills of law reform revision that have come recently before the House, we have taken what was considered most suitable and most appropriate from several different legal systems.

We have left behind recent reforms, either in England or America or some of the Dominion countries, which do not appear to us to be reforms or to be necessary to Irish conditions. It is of very considerable significance, in my view, that the only other common law State in which we meet a reform of the law applicable to the right of a wife or husband to sue each other in tort is the State of New York. That State is the only place which has given to either husband or wife the full right and liberty of suing in tort and in contract as it is proposed in Section 2 of this Act.

I would like to urge on the Minister a careful reconsideration, between now and the Committee Stage of this Bill, of the exact effect of Section 2. The first matter which becomes obvious is that, apart from motor accident cases, it achieves the right of a wife to sue a husband or a husband to sue a wife, in instances which, to my mind, may be found to be undesirable. Apart altogether from negligence or nuisance, it leaves it open for actions to be taken by either party against the other for slander, assault or conversion, all of which would, if this section were left in its existing form, be available to a wife against a husband or a husband against a wife.

I appreciate that, in so far as assault and slander actions are concerned, there is already available in the District Court a criminal procedure whereby a wife can sue a husband for a breach of the peace, or for conduct leading to a breach of the peace, or for assault committed by the husband or wife on the other party to the marriage. One party or the other can be brought to court as matters stand at the present.

I do not think, however, that that is a situation which should be changed or enlarged. I think the right of a wife to bring proceedings of a criminal or quasi-criminal nature against her husband for assault, or threats of assault, is probably something which has existed for a very long time and I do not think it is one which should be largely increased. The point of view which I would like to put before the Minister in regard to this matter is that, from the point of view of the lawyer, the section as it stands is tidy, neat and easy to deal with. I am concerned as to whether or not it may not have purely social disadvantages.

Anybody who has had some experience of practising law, particularly in the country, will know that situations arise in which a husband or wife, possibly more often a wife, will seek legal advice on disputes arising in the ordinary way with the husband, or with the other party. The disputes, or the causes of the disputes, will not amount to such serious or grave matters as would lead to a separation or which would lead any responsible lawyer to advise the institution of proceedings. They often concern single assaults or possibly slander. A wife may allege that a husband has spoken disparagingly to other people of her. As the law exists at present, if the acts complained of should fall short of a very serious difference which entitles a person in this country to a legal separation, the only advice which can be given in such a case is that there is no legal remedy for what has happened and that it is best to go away and forget it and to tell them to settle their differences in the ordinary way.

I feel that, if you provide in a section such as there is in this Bill, a right for the wife to bring an ordinary civil action to punish her husband for a single assault and to obtain damages from him, many disagreements in a marriage which heretofore would have ended with the intervention of some helpful person, will now end up in an action in court and, when that happens, a considerable amount of bitterness will ensue on both sides.

Anybody's experience will indicate that, when a husband or wife takes an action against each other in court, and ventilate their grievances, either in public or in private, it will militate against any real settlement of their differences being achieved. To give a wife the right to sue for a single assault or to give a husband the right to sue for slander for something said by the other party to the marriage, to give the right to sue for detinue or conversion, which is an allegation that one party has not dealt properly with the income of the other, or that the husband has taken part of the wife's money, which are common allegations in disputes, but which would not themselves constitute grounds for a legal separation, would be making matters worse instead of better in the ordinary relation between husband and wife.

I appreciate that there are serious anachronisms and abnormalities in the law as it has come haphazardly down to us as regards husband and wife but I do not think it is necessary to go this far in the case of motor insurance. We could easily find ourselves in the position that, in passing a Bill to rectify the position between husband and wife, we may make it easier or less difficult to have actions between the parties on other matters. That is a point of view I would like to put before the Minister very strongly. It is my own personal approach to the social implications of the section.

There is one other point As I read the section, particularly paragraph (d) of sub-section (1), a husband can sue his wife in ejectment under this section. Now, if I am right in that, and I think I am, that is highly undesirable. At present the position is that one party to a marriage can exclude the other party by ejectment action from the marital home only if the person seeking to eject can establish to the court that the other party has been guilty of conduct which would entitle the plaintiff seeking an ejectment to a separation, were he or she to ask for it in the proper proceedings. That is the only basis on which a husband can eject his wife from his house or a wife can eject her husband from her house.

Paragraph (d) states that a wife shall "be capable of suing and being sued, either in tort or in contract". Then one comes to sub-section (2) and finds that that "shall apply as between a married woman and her husband in like manner as it applies as between her and any other person". I think that the answer must be that if that section is enacted in its present form, then a husband can immediately apply by ejectment proceedings to exclude his wife from his house. If that is so, the only thing he would have to prove is that he owns the house and that he does not want his wife there any longer. The same would apply to a wife who owns the marital home. There is no doubt that would be a most serious consequence, if I am correct in my interpretation of the section. I am not confident I am correct and, therefore, I ask the Minister to consider that aspect of the matter.

I am confident that I rightly interpret the section with regard to the more general point I made at the commencement. Paragraph (d) gives the right to sue in tort and contract. I may be expressing groundless fears and, if I am, well and good, but I would like the Minister to consider very carefully whether or not the purpose of Section 2 could not be achieved by confining the general right to sue to contract in which it is desirable that each party in the marriage should be separate, or, better still, confining sub-section (2) of Section 2, which applies this as between a husband and wife, to cases of driving a mechanically propelled vehicle, or even to cases of negligence, if you want to make it as wide as that, but not to provide for all torts or, in particular, exclude expressly the torts I have mentioned, slander, assault, debt or conversion. There are many alternatives for dealing with the situation. I would ask the Minister to consider between this and the Committee Stage some cutting down of the general power provided should not be made.

With regard to Section 3, I would like the Minister to consider between this and the Committee Stage as to whether Section 3 would inadvertently alter the descent of property of the wife under intestacy. It does seem possible that to provide that all property which the wife has should belong to her as if she were unmarried would inadvertently cut across the existing provision that on her death, intestate, all her property goes to her husband. There is at least a possibility of that.

Another matter with which I am concerned, and I would ask the Minister to consider it also between this and the Committee Stage, is a matter which was dealt with at some length mainly by the Attorney-General, namely, restraint on anticipation. I appreciate this is a highly technical matter and from the point of view of legal history there is very little to say for it. Like many legal doctrines it arose more by accident than by intent, as far as one can see and, like many legal doctrines, it was applied for a purpose for which it was never originally intended. To that extent it should go, particularly as it is now being used as something to defeat creditors rather than as something to protect married women. The possibilities envisaged when it was first introduced as a doctrine for the defence of married women are quite inapplicable to modern times. What I am concerned with, however, is the method of its abolition. In so far as any settlement made after the date of the passing of the Act, I would be wholeheartedly in favour of it.

It is clear from the Minister's speech and from the Attorney-General's explanation that they considered very carefully the question of making this retrospective. There are grave arguments in favour of making it retrospective, the most forceful being that mentioned by the Attorney-General, namely, that a great number of people who have settled property on married women did so in complete ignorance of the doctrine of restraint on anticipation. In other words, they settled it on a certain basis, the terms of the deed of settlement containing certain express provisions, and they were probably quite unaware that there was, superimposed on those express provisions, other restricting provisions by virtue of this doctrine. That is a good argument in favour of retrospective abolition, but it does seem to me that what is being done here is advocating an extraordinarily dangerous principle.

Now, the most usual case is that in which a man settles property on his daughter on her marriage, a man who, for his own good reasons and knowing the situation and the personalities involved, avails of the doctrine of restraint on anticipation and does so because he wants to provide against some very definite and present fears with regard to his daughter's property. If an Act passed by this House were to alter that settlement and to remove what that man considered to be suitable safeguards provided for his daughter's property, I think strong justification would be needed to substantiate that. I appreciate that many arguments have been advanced in justification of such a move, the main one being that for every one case such as I quote, where a man consciously invokes this doctrine in order to achieve a particular purpose, there will probably be ten cases in which a man unconsciously and inadvertently invokes this doctrine without meaning it to have any effect and will be astonished if one tells him exactly what it does mean.

In so far as past settlements are concerned, I have a feeling that, even if only a very small number of people have their express purposes defeated retrospectively, that would be a sufficient injustice to outweigh whatever remedies or cures are effected by the section in other cases. I might suggest that, if the Minister thinks there is anything in the point, a remedy still surely does exist in so far as it is possible to frame the Act to make restraint on anticipation no longer applicable to any settlement made after the passing of the Act and in addition, provide, in so far as settlements made before the passing of the Act are concerned, that there shall be a much wider discretion in the High Court than exists now under the Conveyancing Act to relieve that restraint and, furthermore, that the method of procedure shall be very summary, very direct and very inexpensive.

I see no reason at all why it should not be possible to contrive a method whereby an independent judge of the High Court, say the President of the High Court, could not be approached on something like a minor summons, that is to say, something comparable to a summons in a minor case, to bring a document leading direct to him without any expense, without previous court procedure, and without any procedure before the Master of the High Court, whereby the parties with very little expense could interview him and ask him to lift the restraint on anticipation.

I make that suggestion not on the basis that I think it is any longer applicable or any longer wise, but merely on the basis that there may be people who make settlements relying on that document to break the restraint. I think this House should be slow to disturb that position. These are the only matters in general which I would like to put before the House on the Bill. In so far as it brings up-to-date with social conditions the status of married women, I greatly welcome it; as far as it consolidates the legislation at present existing, it is a godsend so far as practising lawyers are concerned.

The points about anticipation and about the possibility of affecting the testacy of a woman under the Married Women's Property Act are minor points compared with what I consider is the more major matter, the right of a wife to sue her husband in tort. I would like to re-emphasise my concern with that section. It is not a lawyers' concern nor a question of making a provision which will be awkward or out of tune, but I think it is a social concern. It is concern lest in the attempt to tidy up the law we may create a situation in which husbands and wives will find it easier to part, or easier to follow the temptation to part, than they do at present in this country.

Deputy Finlay with all his legal knowledge and experience is competent to criticise the Bill; I, as a layman, have not got that competence and anything I say would be rather in search of information than anything in praise or criticism of the Bill.

Deputy Finlay finds the Bill good in spots, like the curate's egg. I agree with him that in relation to the matter of present legislation, the Bill is very badly needed; but I read in Section 2, sub-section (e) that a married woman shall be subject to the laws relating to bankruptcy and to the enforcement of judgments and orders as if she were unmarried. It seems that as we go on through the sections that that particular sub-section is almost put aside. I find that the Minister's brief says that the Bill is in fact a codification of all the law concerning married women. It goes on to say that the object of the Bill is to put the married women in the same legal position as single men and women. It means to get rid once and for all of all the disabilities under which married women at present suffer —I assume he means legal disabilities —in their property and also in regard to their ordinary rights in contract and in tort. These are all the Minister's words. It seems to me that the Bill does embody something more than codification of existing law.

As I read it, the Bill is directed towards endowing husband and wife with separate personalities before the law in the matter of ownership, use and administration of possessions or property, and if I am correct in that belief, based on the Minister's statement that the Bill is to put married women in the same legal position as single men and women, then, in my view, Section 7 is entirely illogical and its acceptance defeats the object of the Bill. It destroys the accepted principle of equality before the law which it is intended to ensure. It does in fact impose on both the husband and wife a specific disability. Marriage, apart from the special significance it has for a man of my religious faith, is a unique contract and if mutual respect, cooperation and aid do not enter into it, it cannot be made operative.

The Minister recognises that fact when he says "she"—the wife—"may need a little capital for her own or for her husband's business, if, in spite of his efforts as head of the family, the head of a family is affected in his business by a period of financial stringency". If, in his ambition for his family, he proposes to expand his business is it not obvious that his wife whose interests are in the same measure involved will, if she has property, be the first person to come to his aid, the first person to whom he will confide his difficulties and for whose help he will appeal? Why then should the claim to salvage some of her property in the case of his bankruptcy be denied to her and why should she in this case be denied the status of a single man or woman, which she is denied by the section? This is the proposal which the Bill makes to give her the same status as that of a single man or woman.

I am opposed to that section. I think it is unjust. I believe it should be deleted, and referring back to sub-section (e) of Section 2 where it is provided that the woman shall be subject to all the laws relating to bankruptcy as if she were unmaried, it seems to me that this section is entirely illogical. The lawyers in the House will bear with me because of my unfamiliarity with legal instruments when I put the point of view that in Section 9, sub-section (4) a new principle in law is being introduced. Even though for the moment it may be limited in purpose, it is an abrogation of a very wise and ancient code—that a wife may not be called upon to give evidence against her husband. It seems to me that a legal principle, once admitted, tends in time to override limitations. Law is intended to protect, not to disrupt, and if we are to accept this principle we shall have to rewrite the terms of contract.

In general principles at any rate there can be no quarrel about the proposals now before the House in this Bill. First of all, I want to join with Deputy Finlay in his tribute to the draftsmanship of the draftsmen responsible for it. It is a very noticeable feature of Bills coming before the House in recent times and is one to be commended.

As I have said, we must welcome the Bill. Of course a welcome can always have reservations and I have no doubt the anxieties expressed by previous speakers are genuine and made with a great degree of sincerity. Speaking entirely personally I do not share those anxieties with regard to the husband and wife being able to sue each other mutually in tort or contract or otherwise. I would not have the slightest worry about a situation of that kind obtaining because, as I hope to show in defence of my argument on the various provisions of this Bill, I think it would be a good thing socially, apart entirely from the legal situation, if husbands and wives were mutually aware of remedies which they might not necessarily put into effect but which they knew were there for their own protection; it would be much better particularly that the offending party knew the remedy was there and knew it could be exercised against him or her if needs be.

Deputy Finlay is worried that where a provision falls short of providing grounds for a legal separation there should be a remedy. He seems to think the existing situation should obtain where legal advisers say: "There is no legal remedy for this so you had better go home and iron out your difficulties." Cannot all sensible people realise what the position would be in what are, happily enough, isolated cases when an offending husband or an offending wife would come to the full realisation that if their conduct falls short of what would give grounds for a legal separation, and where there is no legal remedy, they can go on and on and on misbehaving and still being careful to keep outside the grounds for a legal separation. Such a condition of affairs has been intolerable and a remedy should be found for it.

Under the Married Women's Property Act of 1882 the position is that by virtue of that statute the wife has the right to sue her husband for the protection of her property. The only change in this Bill is in respect of torts other than torts against her property. The other point raised as to devolution has not been touched upon in this section. I do not think it is intended that this Bill, or the provisions of Section 2 of it, should in any way affect the devolution of the property of a married woman. I would like to think that, a man who was the master of his own house, or a woman who was the mistress of her own house, should have a remedy to correct something that might be going on which might be objectionable either to the woman or to the man. With regard to the point raised by Deputy Moylan, he was obviously referring to competent or compellable witnesses as defined in the Evidence (Amendment) Act of 1853, the Evidence Act of 1869 and the Act of 1877. In every one of these cases either party are compellable witnesses except in the case where adultery is alleged against either spouse. In criminal proceedings wives are always regarded as competent witnesses on the application of the person charged only. Under the Criminal Justice Evidence Act of 1924 in cases of personal violence a husband or wife is a compellable witness in common law but in other cases the statute precludes them. Though they may be called upon, they may refuse to give evidence.

I want to know if the Bill offers the court or any other authority the right to compel a wife to give evidence against her husband.

This Bill makes no change in the case of the competence or compellability of witnesses either male or female. This is a Bill the general provisions of which should be welcomed not alone by legal practitioners and legal historians but socially and from the point of view that in its provisions it shows a definite advancement not alone on social conditions but on our civilisation. This Bill is intended to take away every trace of the days when married women were known as "the spoiled children of the Court of Chancery", and it is interesting to note that married women were, up to now, included in our law in a very odd assortment. We had them included with minors, persons of unsound mind and convicts.

While I do not see any great objection to having them included with the young, or indeed with their being young themselves, I should like to see them taken out of the categories of the mad and the bad. In addition to having them lumped together in that way with infants, lunatics and convicts, you have them again divided into three separate categories known as feme sole, feme covert and feme discovert. Translated and shorn of its legal meaning that simply means a single woman, a married woman and a widow. Strangely enough, the only one of them that the law up to now sought to protect and in fact did protect was the married woman. The single woman was, so to speak, on her own. The widow was on her own, but the law, for some queer reason or other, always insisted that the married woman needed protection whereas in fact socially it had to be accepted that when a woman married she was leaving the protection of her own parents and home and had found a new protector. Nevertheless, the law did not appear to be satisfied with that and insisted on giving her further protection still.

As I have already said, the Court of Chancery was following the principle that the wife in former times, and indeed up to now, was in some respects regarded as a kind of chattel, some part of a man's property which he owned, lock, stock and barrel. Then the Court of Chancery began to treat her as "a very delicate flower" indeed. That might be very desirable from a social point of view but to have the protection of the court afforded with such elaboration is something that does not commend itself to me and I do not think would commend itself to anybody socially interested in matters of this kind.

It was a curious reaction to the marital promise where a man promised to bestow on his wife all his worldly goods. I think the wording is, if I recollect it accurately, "With all my worldly goods I thee endow". The net result of all that was that he got everything and she got nothing. In our ancient Irish proverbs there is a description of it. The old Irish people used to say and still say: "Is fearr bean ná spré, ach i dteannta a chéile is fearr iad". Of course, that translated literally probably does not convey the full wisdom of the proverb. It simply says: a woman is better than a fortune, but the two together are better. You have got the word "good" there—a morally good woman, a practical woman, a good housekeeper, a careful, reliable spouse, are all included in that one word—that such a woman was infinitely better than getting a fortune with somebody who would be utterly worthless. The law concerned itself simply with the dowry or fortune, as it is known, and paid no regard to the human qualities apart from that.

In this Bill a married woman will be able to stand on her own feet. She will be able to sue and land herself in the position of being sued just the same as a single woman. That expression we had in the law, and still used outside the law, the feme sole, will disappear for ever. Sections 2 and 3 of the Bill will abolish the notion of separate property, a notion that had unfortunately been preserved in the Married Woman's Property Acts, and the position with regard to a married woman will now be the same as that of a single woman. They may sue their husbands in tort and their husbands may sue them. Deputy Finlay has already given a very full and clear explanation of the position obtaining with regard to motor insurance and I do not think it is necessary for me to dwell any further on it. This covers a very peculiar anomaly which existed up to now that the wife, who was very badly injured in an accident being driven by her husband, even though comprehensively insured, was not insured herself unless there was some special separate cover for her. I think that is the only place where this will have any practical application because I do not at all share the anxiety of other speakers that this will be abused. As I said before, I think it is a very good thing that people should know there are remedies there and sensible people will take cognisance of the fact that if such remedies are invoked against them it will very probably have a very helpful effect on their conduct.

This Bill will put the married woman into the same position as her child. The child could take action against the father but the wife could not. I doubt that there will be any other type of action that will be either trivial or vexatious because I can scarcely imagine, for instance, a husband or a wife suing each other for slander or libel as the case may be. That brings me almost automatically to the consideration of Section 10 of the Bill. At the moment a husband is responsible for his wife's torts. In other words, if she slanders somebody the husband is joined for conformity, as we say in the law, and made liable for costs and everything else. That situation may not apply to all but there are cases where you find women can be quite difficult in the matter of dealing with their neighbour's character; and it is a worry to husbands to have themselves in the position of being liable for every careless or malicious word uttered by their wives whether it be at a tea party, at a bridge party, over the garden wall or any other sort of social gathering where women meet and sometimes outside the ordinary run of the conversation tend to delve into the malicious, the libellous and the slanderous.

Considerable time has been given already by the Minister, the Attorney-General and Deputy Finlay to this question of restraint on anticipation. If my recollection of restraint on anticipation is correct, it is contrary to what Deputy Finlay says that it came about by accident. It did not. The late Lord Thurlow, mentioned by the Attorney-General, invented this particular thing and he is said to have invented it for, of all things, the protection of a relative of his own. That could not be construed as an accident in any shape or form. Certainly it was invented at a time when he had reached an age at which his mind might not be quite as clear as it might.

At one time the Minister for Agriculture, Deputy Dillon, when pleading for the abolition of the Public Authority Protection Act of 1893, said, if I recollect it correctly, that the late Lord Hailsbury was still stretching his hand out from the grave to deny the people their rights. In the Public Authority (Judicial Proceedings) Act of 1954 we got rid of Lord Hailsbury's outstretched hand depriving people of their rights and in this Bill we propose to get rid of Lord Thurlow and his invention of restraint on anticipation.

This doctrine of restraint on anticipation was not considered as a very great principle by subsequent British Chancellors but they felt as Lord Eldon said that he considered it was too late to do anything about it. The principle of being unwilling to change seems to have operated very much in those days and accordingly he did not question it, because it had already been done by Lord Thurlow and his successor. The idea of restraint on anticipation was to protect the wife from, as it was put, "The kicks and from the kisses of her husband." In time, of course, it extended much further and allowed her defraud her creditors.

On that point, a married woman, being able to defraud her creditors in that way, was using her property to the detriment of others and was accordingly flouting the accepted principle that you can do what you like with your property provided you do not injure others. Section 7 of the Bill is simply doing that. An English lady lawyer, speaking upon this doctrine of restraint in anticipation, although she supported it, said that it would not be necessary "if men were not such cads." So, this Bill is now putting a married woman in the position of being able to stand on her own feet but also puts mere men in the position of getting ourselves out of the category, described by the lady lawyer, of being "cads."

Abolishing restraint does not mean that a husband can get at his wife's property. She need not capitalise her income, if she has a fixed income settled upon her in any way, if she does not want to, and she is protected from her husband's "kicks", as it were, in that respect by the provisions of Section 2.

Section 2 allows the wife to sue her husband civilly for personal injuries. Most restraints are instituted pro forma and sometimes are attached to the property of a woman while she is still a baby and, therefore, at a time when the settlor, that is, the person making the provision for her, has not the faintest idea whether she will or will not need protection when she gets married.

A learned English lawyer, Viscount Simonds, put the position this way: Does any father ever say to himself: "I do not want to protect my single daughter; I do not want to protect my daughter when she becomes a widow but I do want to protect her when she is married"? That fundamentally is the effect of restraint upon anticipation. It is a relic of days that are gone and I certainly welcome its abolition in the terms of this Bill. It was technical; it was elaborate; it was difficult and all such technical and elaborate arrangements designed to fetter property in that way are ill-advised, not alone from the public interest point of view, but from the point of view of the person concerned. If I give two examples from our own law here of how restraint in anticipation works, it will probably be better understood as to why it should be removed.

There was a case entitled In Re Sawyer's Trust, 1896, 1st Irish Reports, 40 M.R. That was a case where a married woman had settled personalty on herself for life with a restraint clause. The restraint was removed in order to allow £500 to be raised by the trustees to allow her son to set up as a practical farmer, thus relieving herself and her husband (who had a life interest in the remainder of the property) of the expense of maintaining the son.

That was a case where, if restraint in anticipation was not there, the £500 could have been given to that son forthwith. What had to be done? The restraint was lifted but only for the specific purpose. The court had the power to do it. The principle that emerges from that case is this, that the court has only power to lift a specific restraint; it has no power to lift restraint in a general way. In order to remove that and to give the son the £500, the mother had to go to court with all the consequent expense involved in such proceedings.

There was a second case—In Re Lavender's Policy, 1898, 1st Irish Reports, page 175 C.A. In that case a married woman effected, in 1885, an insurance on the life of her husband for a period of ten years, and under the policy, described in the margin as “wife's policy—endowment,” the amount insured was made payable to her for her sole use if she and her husband both survived that period, which event happened. The policy was made on condition that certain provisions and requirements annexed to it were to be taken as part of the contract. One of those was “This policy is not assignable”. It was held that there was a restraint upon anticipation and that an attempted charge upon the policy during the currency of the ten years was void.

That was a case in which a married woman could not change the policy, even with her own insurance company, in order to raise money, although a single woman or a man could do so and could charge an insurance policy of a similar type. That was a case where the married woman imposed the restraint herself. It was not imposed by any settlor for her.

It is interesting to note in regard to restraint upon anticipation that there is no trace of it in Scots law and if any people's habits of living, of thrift generally, modes of life, compare very favourably with ours, it is the Scots. They have not got restraint on anticipation and it would be well to follow them in that respect.

Another of the old rules of the common law which needs examination is the doctrine of consideration and this Bill, when amended, will have made another inroad into that doctrine by allowing the jus quaesitum tertio to operate within the family. Here again we could do well by following the Scots. It is reasonable to suppose that when Section 11 of the 1882 Act, that is, the Act in relation to married women's property, was being enacted, the lawyers who framed the Bill had a horror of allowing a third party to sue on a contract and saved their faces by introducing from Equity the cumbrous method of the trust where life insurance policies were concerned. Otherwise, the solid citadel of consideration might totter and that, of course, could not be allowed to happen.

This Bill, in my opinion, will make life easier for everybody. In future, the doctrine of restraint will be as dead as Queen Anne and it will be only a concern of the legal historian. It will no longer be a problem for the practical lawyer or an injustice for the married woman.

The repealing of all these statutes set out in the Schedule will be a boon to anybody who has to find out what the law is. Here we have, not alone a consolidating Bill but a reform Bill, rolled into one, and bringing everything up-to-date. If, for instance, by some queer accident of fate, the whole of our country was destroyed and this record was left, it would show that our civilisation had advanced to a degree that was amongst the foremost in the world in this particular respect because the status of the married woman in society is to a very great extent a useful yardstick of our advancement in civilisation.

The whole position of the married woman has been a very extraordinary one. In Bacon's Abridgement, edited in 1832, he says that husband and wife are one according to common law. The actual quotation is:—

"The law looks upon the husband and wife as one person and therefore as of only one will between them which is placed in the husband."

I am sure that each and every Deputy has heard the old story of the young couple returning from their nuptials. When the excitement had died down and they were alone, the wife looked at the husband with great sincerity and with great love and said: "John, dear, was it not lovely to hear the priest saying that we were one this morning.""Yes," said John, looking at her a little sternly, "but do not ever forget that I am the one."

That story is probably true and it is enshrined in the common law. The Romans, whose system of law was extremely modern and up-to-date, regarding the position of the married woman, were much more advanced than we have been prior to the bringing in of this Bill. Prior to Justinian's time the husband acquired nothing with his wife and anything that came to her during their marriage was hers. We, in 1956, are now bringing up-to-date a position which the Romans had before Justinian's time. A married woman in Rome in those days had a complete legal status of her own and could own and deal in property. She was quite independent.

In all the other Indo-European legal systems the development is from the time at which the married woman had no legal capacity at all to the time when she had equal capacity with her husband. One of the points of highly developed legal systems is that the legal position of the woman is equated to that of the man. The original idea in all these legal systems is that a father protects his daughter in her early years; that a husband protects his wife in youth and middle age and that her son protects her in old age. That prevailing idea of the necessity for protection comes from the view that the woman was never supposed to be fit for independence.

The giving of full legal capacity to the woman is also enshrined in old Irish law and is probably the most interesting thing of all. At one time a married woman was included amongst her husband's family. The original principle of total incapacity was before the principle of condominium and the position of the wife, with regard to contracts, was the same as that of her husband. Further development contributed to a state of almost equality. Either could rescind disadvantageous contracts made by the other and related to the marriage property itself and in time both husband and wife could have separate property and either could dispose of their own property. Finally, the wife obtained wide powers of independent contract. She further acquired control of her own contracts and the position arose where the wife was entitled to half the husband's honour price, that was compensation for a transgression against the man's honour.

Old Irish law was certainly much more highly developed than the common law and here we are trying to get rid of the common law position in regard to the married woman. In doing so, we are trying to reach the stage that most Indo-European nations have already reached, that the Romans reached before Justinian and that the old Irish law reached. The old Irish law was much more developed than the common law in regard to the status of the married woman. Professor Binchy in his Studies in Early Irish Law, published here before the war, dealt with the whole matter and it is on his contribution in this book that reliance is placed by me in making this statement with regard to the superior status of the married woman in ancient Irish law.

There are people who hold that the ancient Irish State was a matriarchal State but historians are now more or less agreed that there is no foundation for this theory. I accept Professor Binchy's view and in doing so I am putting this Bill to the House as a Bill that is going a long way towards establishing the position of the married woman as the position that existed in ancient Irish law before the coming of the common law. We are hereby getting rid of the common law and ensuring a position that, if all our records or traces of our social laws were wiped out and only this one left, our civilisation would be measured by our advances in this regard and would be preserved for the world.

Not being a lawyer I shall not detain the House very long on this measure. My opinion about the Bill is that it is scarcely necessary at all but of course it is a good thing to have all this legislation about the married woman embodied in the one statute. In all the talk we have heard from the Minister for the Gaeltacht he has not dealt with the point made by Deputy Moylan. That is the discrepancy between Section 2 and Section 7. Undoubtedly, in Section 7, a married woman is not treated as a separate person.

I do not think that is so.

I think it is so. Section 7 reads:—

"Where the husband of a married woman has been adjudged bankrupt she shall not be entitled to claim any dividend as a creditor in respect of any money or other property lent or entrusted by her to her husband——"

and so on.

The "so on" is the important part.

That does not apply to any other individual and I think Deputy Moylan had a good point there. In this case she is not being treated as an independent person. She is certainly not being treated as if she were in the position of an unmarried person. The same applies in the case of a man. I think Deputy Moylan is right in that matter.

Like Deputy Moylan, I am not a lawyer and I was not aware that a wife could be compelled to give evidence against her husband. As we are reforming the law here, as well as consolidating it, I think the law should be amended in that respect; a wife ought not to be compelled to give evidence against her husband and neither should a husband be compelled to give evidence against his wife. If they elect to give evidence voluntarily, well and good, but we should take advantage of this Bill to amend the law in that respect now.

Section 18 says that "nothing in this Act shall be construed as validating, as against creditors of the husband, any gift ..." There is a common belief—I am sure it is not correct—that a man can get rid of his debts by passing on his property to his wife. It is made clear in this Bill that nothing in this measure will validate that. Apparently, though that belief is common, it is not the law. I know of a case where a man got two houses built. He did not pay the contractor and he passed the property over to his wife. The contractor has not yet been paid. I suppose if the contractor had taken the proper steps he could have compelled that man to pay, but there is a general belief that people can avoid their debts by signing over property to their wives. I am glad it is made clear here that that is not the law.

I approve of Sections 10 and 11. If a woman owes money before her marriage, by all means let her creditors sue her. A husband ought not to be held responsible for his wife's slanders and neither should a wife be held responsible for her husband's slanders. These two sections are quite all right.

Sub-section (4) of Section 9 ought not to appear in this Bill. With regard to Section 7, Deputy Moylan made the point that there is a contradiction between Section 2 and Section 7. That contradiction will need to be cleared up.

Like the last speaker, I am not a lawyer. For that reason I am somewhat disinclined to enter into this debate. There is one section, however, about which I am not at all happy. I refer to Section 2. Sub-section (a) of Section 2 states:—

"Sub-section (1) shall apply as between a married woman and her husband in like manner as it applies as between her and any other person."

I listened to Deputy Finlay this evening and I was very impressed with what he said. He spoke as a lawyer of considerable experience. He cited instances. He said that there are very often difficulties behind the scenes about which nobody knows anything; by virtue of this section, such difficulties may in future be brought into open court. Unfortunately all marriages are not always happy. As a medical man, I am quite aware of that. What this section does is to enable a husband or a wife to bring their own personal grievances into open court. Anything that enables married people to do that is most undesirable from every point of view.

The Minister for the Gaeltacht said that the purpose of this section is to enable a husband or wife, as the case may be, to take action against each other in motoring accidents. Now I approve of that but, if they want to do that, why not include a simple section for that purpose and for no other reason? The word "tort" is used. Tort means negligence. It also means nuisance, assault and slander. Why introduce such an extensive section as this? Why not introduce a simple section to cover what is intended? Everybody would be satisfied with that and no one would have anything to say against it. The Minister for the Gaeltacht tried to tie up Section 2 with Section 10. I agree fully with Section 10 and I hold that the two sections have no relationship whatsoever. Section 10 simply means that a wife may be sued for certain things, things for which her husband will not be held responsible. That has not the same effect at all as Section 2 because the wife may be sued separately in Section 10 and there is nothing to indicate any relationship as between husband and wife. It is reasonable to assume that, if a wife is sued under Section 10, she can have the full support of her husband behind her. At least, he would be with her in his sympathy.

Section 2 bears a different interpretation altogether. Section 2 can have very wide repercusions. If a married couple have a dispute and seek legal advice, it will be possible under this section, if it is passed, that they will be advised that they have a particular action and that will help to weaken the marriage bond. Any legislation we introduce here should not work in that direction. I could never approve of that and I would ask the Minister to introduce some amendment to that section to cover what is intended, and only what is intended, namely, claims for negligence in motoring accidents or anything appertaining thereto.

When I received a copy of this Bill my first reaction was to ask myself from what source did the demand for this Bill come? As far as I can see, it is a Bill that has no urgency. We are living in a rather critical period and we could be dealing with much more important legislation than this particular type of Bill. I would like to know from the Minister from what source did the demand come at this precise time for this particular type of legislation? As a layman, anything I may say on this Bill may not be legally correct but, nevertheless, I have heard a view expressed outside; it is a layman's point of view and it may, therefore, be of some little value.

Deputy Finlay said that in certain circumstances it is desirable that husbands and wives should keep out of the courts. This Bill is aimed at bringing them into court. It provides the opportunity for husband and wife to sue each other. I rather imagine it is undesirable from any point of view that we should be bringing about what somebody has described as equality. Can anyone imagine a husband suing his wife, bringing her into court, going through all the formalities that the court imposes, of giving evidence, undergoing cross-examination, or imagine the wife imposing the same ordeal on her husband? Could anybody imagine that husband and wife would live in the same harmony after this as they had lived prior to the action taken by one or the other?

I am satisfied that the marriage contract which has been in operation now for a considerable time has worked satisfactorily. Does anybody suggest that this legislation which includes these provisions will make the contract any more solid or happier? I do not think so. My own view is that it will do inestimable damage, and from that point of view I do not see that this Bill is necessary at all, especially in view of the situation in which we exist.

As the former Minister for Justice has stated, we shall be discussing this matter on the Committee Stage and it is quite possible we may find it necessary to put down some amendments to deal with some of the views that have been expressed from this side of the House. I feel that there is no urgency whatever in regard to this type of Bill and I do not see, personally, why it was necessary to bring it in.

May I——

Might I point out that the Attorney-General may not speak twice on the Second Stage unless he is concluding on behalf of the Minister?

As I have been allowed to join in the Second Reading speeches up to this I thought that particular mood would still obtain and that I might be allowed to answer points made.

Was the Deputy's statement on the former occasion taken as part of the Minister's speech?

While I would not like to say it was taken as part of the Minister's speech, I think it was taken as an addition to it, and if I might explain——

Would this be creating a precedent?

No, a precedent will hardly be created——

The Chair may be in difficulties if other Deputies wish to speak twice.

I am sorry about that. I did not think that would arise. I understand, however, that there is no objection.

So long as the principle will be embodied in the rules of this House.

The rules of this House have already been made clear on that particular point. Deputies may not speak twice on the Second Reading of a Bill.

Is the Attorney-General speaking twice on this?

I am, Sir. I am breaking up what ought to be the Minister's concluding speech, in the same way as the opening speech was broken into two parts. I shall not press the point if there is any objection to it. I understood there was none.

There is no objection to the Deputy speaking. I have no objection, but, if there is any principle being established in the procedure of the House, the Attorney-General has no status here other than that of any Minister or Deputy. If this is being established now I want to suggest to the Leas-Cheann Comhairle that it is an important matter that may have far-reaching effects in the future.

The Chair can only allow the Attorney-General or any other Deputy to speak twice on this particular stage if agreeable to hear him. If there is any disagreement, then the Deputy may not speak twice.

I understood that it was agreed.

We do not want to disagree. Go ahead.

Dr. Esmonde raised a point with regard to Section 2, but Section 2 is pivotal. Without Section 2 in its present form the legislation need hardly have been introduced. The reason why it was introduced was stated at column 832 in the report of the debate of November 8th. The Minister put it this way:—

"To put it shortly, I may say that the object of the Bill is to put married women in the same legal position as single women and men. In other words, it means to get rid once and for all of the disabilities under which married women at present suffer, not alone in regard to their property but also in regard to their ordinary rights in contract and tort".

That is a very brief and simple explanation of the purposes of the Bill. May I refer to what Deputy Traynor has mentioned and which apparently has been in the background of the thoughts of several Deputies while this legislation is being discussed? Is it a bad procedure to allow husbands and wives to sue each other in the courts? An attempt is being made to create the impression that there are multitudinous husbands and wives ready to rush into court to sue each other for libel or slander or abuses of all kinds. I do not believe that is the case. The legislation is for the odd case, and it will be a very odd case, in which the husband and wife wish to stand in court against each other.

Again, is it suggested that there may be a lack of harmony in marriage because the partners are allowed to go into court one against the other, in circumstances in which they are living, apparently, at boiling point, anxious to sue each other for libel or slander or physical violence but are not allowed to come to court to expose this? I cannot think that there would be any disharmony or that married life would be to any extent disturbed by the provisions of Section 2——

Would the Attorney-General think it desirable that they should be allowed to go to court?

Certainly, in the very odd case in which it would be necessary for husbands and wives to sue each other for the protection of rights. If Deputy Allen would rather have the situation in which people would be living at boiling point and the only thing preventing them from going to court, even though they are fighting at home——

It is much better to have them fight at home.

That is a point of view in opposition. If one thought this was going to let loose on the courts a multitude of actions by husbands against wives——

Deputy Boland did put our point of view on Section 11. He did not object to Section 11.

I am coming to Section 11. Sections 10 and 11, I think, were referred to by some Deputy—I think it was Deputy Boland—who said that he objected to those——

No, Deputy Boland did not. He said he regarded Section 11 as being a necessary section.

That is a different matter. With regard to Deputy Moylan's point on Section 2——

Sub-section (e) of Section 2.

Paragraph (e) of sub-section (1) of Section 2. That merely makes a married woman subject to the law of bankruptcy. At the present moment a married woman is not subject to the law of bankruptcy unless she is trading separately from her husband and then only to the extent of whatever her separate interest is.

You are imposing a disability on her.

What disability? There is no disability in Section 7. Sub-section (2) of that section has been law since 1882. It is old law.

But it does not treat her as a single woman as it purports to do.

Of course not.

Why say it then?

We now come to the question of bankruptcy. Section 7 allows postponement of claims. As I have said what is being done here is the adopting of a provision which has been law since 1882.

Why not change it?

I think it is a good provision. Let us take sub-section (2) of Section 7, which is law at the moment. It says:

"Where the husband of a married woman has been adjudged bankrupt she shall not be entitled to claim any dividend as a creditor in respect of any money or other property... until all claims of the other creditors of her husband for valuable consideration in money or money's worth have been satisfied."

You could not apply that to a single woman. What is wrong with it?

Entirely wrong.

Of course it is.

First of all it is an old law. You cannot equate the position of a married woman to a single woman here.

What I would like to know——

Deputy Moylan might allow the Attorney-General to finish.

The only change being made is that which equates the position of the husband in relation to his wife who has been made bankrupt. Section 2 (1) (e) says that a married woman shall be subject to the law relating to bankruptcy and to the enforcement of judgments and Orders. That means there is no longer this matter of whether or not she is trading on her own. There is no limitation of any kind that may be adjudged against her because she is the owner of separate property.

Deputy Finlay expressed a fear in relation to Section 3, that all property, whenever acquired by a wife, belongs to her as if she were unmarried. On the Second Reading the Minister and myself referred to the fact that, except on one small point, this was not changing the law of inheritance. The one small matter that I mention was referred to at the end of the speech I then made when I pointed out there was legislation in connection with the administration of estates being brought before the House.

A number of Deputies have asked why not relate the whole question of the position of married women to that affecting them in relation to cases arising from motor-car accidents. We could not change the law merely in respect of the matter of motor accidents. With regard to the matter of ejectments, I am not quite sure that I get Deputy Finlay's point. On the Second Reading I did point out that there was a case reported in the Law Reports where a wife obtained an injunction against her husband debarring him from her house on the grounds that he was keeping away boarders. Identical circumstances would have to arise in these cases before a separation could be granted. This whole matter can be looked into more carefully later on the Committee Stage.

Deputy Moylan referred to Section 9, which he said would tend to break up harmonious homes. Section 9 is extremely limited in its provisions and can hardly be said to be new law at all. The side-note makes reference to "Criminal proceedings for protection of property of married persons". It is pointed out in the first sub-section that whatever is in that sub-section is subject to sub-section (3) of the section. Subject to that sub-section, sub-section (1) says:—

"Every married woman shall have in her own name against her husband, the same remedies and redress by way of criminal proceedings for the protection and security of her property as if she were unmarried."

Sub-section (2) of the same section is also subject to the provisions of sub-section (3) and it gives the husband the same rights as sub-section (1) gives to the wife.

Sub-section (3) of Section 9 deals with a situation where one spouse may attack the other. It says:—

"No criminal proceedings concerning any property claimed by one spouse (in this sub-section referred to as the claimant) shall, by virtue of sub-section (1) or sub-section (2), be taken by the claimant against the other spouse while they are living together, nor, while they are living apart, concerning any act done while living together by the other spouse, unless such property was wrongfully taken by the other spouse when leaving or deserting or about to leave or desert the claimant."

This is old law. Under the English Larceny Act, because husband and wife were regarded as one, it was impossible for one spouse to charge the other with the larceny of the property so long as they were living together. Supposing the pair are separated, can one then take an action for larceny of the property? Not unless the property was taken by the spouse when leaving or deserting or about to leave or desert the other. That is very limited. It is old law and there is nothing in it that would lead to the breaking up of a harmonious home because there is prohibition against criminal proceedings while they are living together. There can be no criminal proceedings while the two are living together or unless the larceny occurred while one or the other was preparing to break up the home. There is nothing in that that would create disharmony between the spouses. That is old-time law and, I suggest, good law. It gives a certain protection that might not otherwise be there.

I do not think there is very much more to which I should refer. There was one point raised by Deputy Moylan about witnesses and perhaps the statement of the Minister for the Gaeltacht on the subject may be misunderstood. He referred to competent witnesses and to compellable witnesses. Competent witnesses are those who may be called and compellable witnesses are those who must answer questions when called in court. There is then the division between civil and criminal proceedings. In civil proceedings husbands and wives are competent witnesses—they may give evidence one against the other. In civil cases they are compellable witnesses in every case except those involving alleged adultery. In criminal proceedings husbands and wives are competent witnesses but they may give evidence generally only with the consent of the person who is charged. Without the consent of the party who is charged, a husband or a wife is a competent witness in cases of personal violence, the protection and security of property, bigamy, child neglect and some other matters.

We are making one change. Under the Married Women's Property Act, 1884, a husband or wife was made a compellable witness to give evidence in any criminal proceedings authorised by the 1882 Act. We are repealing the 1884 Act and we are not making the husband and wife compellable witnesses in criminal proceedings. The phrase here in paragraph (4) of Section 9 is:—

"...in any criminal proceedings to which this section relates brought against one spouse, the other spouse may ...be called as a witness."

That is another way of saying they are competent witnesses, but it does not say they are compellable. If any change is made in the existing law, it is by the repeal of the 1884 Act and the provision contained in the particular sections therein is gone. The situation is not as bad as Deputy Moylan thought when speaking. There is not the question of compelling——

Is there compulsion?

No, competent witnesses may be called.

What does "may" mean?

It really does not matter what "may" means there if you focus your attention on the phrase "competent as witnesses". That means they may be summoned as witnesses and are entitled to give evidence. The compellable witness is what the Deputies were after and, as far as sub-section (4) of Section 9 is concerned, there is no trace of compulsion there. They may be called as good witnesses or may be brought in as witnesses.

I do not think there is any other question except that of restraint on anticipation. I do not think there are many people affected by that nowadays. It was a device for the protection of the property of married women where a good deal of property was settled on them in marriage and where the peculiar circumstance obtained that the father of the girl thought his child should marry but did not think the man was going to treat her properly or in the way he liked and restrained her from participating in it to protect her from some predatory husband. Although introduced to cover this particular case, it applies everywhere and has now become the subject of great abuse.

I mentioned in my speech on the Second Reading a couple of cases in England where people were found to be perpetrating the grossest frauds on other people and yet there was no way of getting rid of the restraint on anticipation. Even creditors were being grossly defrauded. One of the cases was where people mortgaged property without revealing that it was restrained and, having got the mortgage money and spent it, they stood on the restraint as preventing the property from being attached in order to pay the debt.

The second point is that there is quite a number of cases in which it would be possible to have the restraint lifted by an appeal to the court; but whether it is lifted or not is a matter for the discretion of the judge, and how he will exercise that discretion in particular cases is very hard to forecast. It is fettered in this way. Restraint on anticipation may only be lifted if it is for the benefit of the particular married woman. The case was quoted here of a lady whose husband had fallen into bad health and it was necessary to get a certain amount of money in order to send that person to some good climate like Switzerland to have him recover. That was refused because it could not be urged as for the benefit of the lady.

Deputy Finlay hoped to have it negatived both in respect to future settlements and old settlements. I should imagine that that would be met by cutting out from Section 6 where it says "before or after the commencement of this Act" the words "before or". This is not the same case as ordinarily would be talked of in this House in connection with retrospective legislation. There is a certain amount of retrospection in it. The restraint has not entirely been fixed. People have imposed restraint with the knowledge that there is an appeal to the courts and that, at the courts' discretion, it might be lifted. A person who is knowledgeable may by a deed before a marriage relieve and get away from the anticipation.

There is also the point that restraint on anticipation does not affect many people but it affects quite a number of creditors in a bad and dishonest way. People who are supposed to be protected against predatory husbands now find they have got a great protection against paying their debts. Even in the small number of cases concerned this is a desirable thing to get rid of. I suggest we are doing, as I said in my speech on the Second Reading, what the settlees would have done in most cases if they realised what the results would be.

This is an old doctrine of no value. Very few people will settle anything in this particular way now. They have other devices for the future. Even though it may be restrospective to a point it is retrospective with a good aim.

Question put and agreed to.
Committee Stage ordered for Thursday, 6th December.