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.