I move: "That the Bill be now read a Second Time."
This is a Bill to amend the law relating to maintenance and desertion, to introduce a system of attachment of the earnings of persons who default on payments under an order for maintenance, to extend the limitations in affiliation proceedings to two years, and to amend a number of other aspects of family law.
I should like at the outset to take this opportunity to express publicly my gratitude to the Committee on Court Practice and Procedure, under the chairmanship of Mr. Justice Walsh, for their report, entitled Desertion and Maintenance. The committee clearly had to work very hard to produce their report so quickly and, as Deputies will be aware and as is pointed out in the introductory part of the official explanatory memorandum, the Bill draws heavily on the report.
The interval between the publication of the report and the publication of this Bill has been the subject of some comment. I propose to return to this point later. For the moment I think it is sufficient to say that, however valuable a report may be—and the value of this particular report needs no emphasising—a report is not a Bill. Between the two there lies an extensive area of analytical work, of consultations and decision making as well as the task of legal drafting which is a highly specialised, slow and difficult process even for an experienced professional draftsman.
There is one other preliminary point I want to make. I have on several occasions expressed the confident hope and expectation that the Bill would be introduced in the present session, as in fact it has been. I did not at any time, as some commentators have alleged, undertake or imply that it would be law in the present session. I do not see it as a simple little Bill that ought to be hurried through with the minimum of debate but as one that in some respects could represent fundamental and possibly far reaching changes in our family law, changes that deserve careful and considered thought. I think that it is important that the extent of these changes which I am recommending to the House should be adverted to and discussed, so that when they are approved, as I believe they should and will be, there will be no room for doubt that this is a considered decision by Parliament, taken with a full knowledge of what is involved.
The Bill proposes a fundamental change in the law in regard to maintenance. Until now, except in cases of serious neglect, the law has not imposed a generally enforceable obligation on spouses to maintain each other and their children. An order for maintenance may be made only against a husband and against him only if he has deserted his family and wilfully neglects or refuses to maintain them. A wife, no matter what her financial circumstances may be relative to those of her husband, cannot as a general rule legally be obliged to maintain her family. Proceedings for maintenance under the Guardianship of infants Act, 1964 constitute a very limited exception to this general rule, and even in that case an order will not be enforced where spouses continue to cohabit.
The Bill proposes that in future both spouses should have a duty to maintain each other and their children, independent of any question of desertion. There is therefore, may I emphasise, a twofold change: Firstly, the discarding of desertion as a criterion and, secondly, the extension of the obligation to wives. I believe that this twofold change represents a desirable and just reform. It will place the parties of marriage in a legal position which will reflect what is commonly accepted to represent their moral responsibilities to each other and their children; moreover, it should strengthen marriages by no longer obliging wives who have been badly neglected by their husbands to leave the home in order to establish that their husbands have constructively deserted them. I hope to deal further with these points when I come to them in my analysis of the Bill, but I would like to stress at the outset that reform of family law—especially in such sensitive areas as are covered by this Bill—is a task in which there are no easy, answers or simple solutions. One's aspiration must be to try to establish a fair system of legal rules which are likely to promote a just and harmonious family relationship in the general run of cases. Perfection, in the sense that every case involving breakdown of personal relationship will be resolved in a totally satisfactory way, is, of course beyond the capacity of any legal system. There will always be the case which falls just outside the line.
A solution is not to be found in attempting to change the rules in response to every new case that arises—this indeed is the old problem of hard cases making bad law. However, one way of accommodating the very wide range of human conflict which maintenance proceedings involve is to give the court a large amount of discretion and not to tie it down by too many rigid rules. This has been done in many respects in the present Bill. Up to a point, it is undoubtedly not only a good solution but the only possible one. But it is a solution that has the defects of its virtues and it is an approach that could easily be carried too far. To give, either to a court or to any other authority, a broad discretion is not to provide a panacea for the problems presented by hard cases. Professor Katz, the noted American author on the law relating to children, writing in the context of child neglect, has warned that:
"as broadness enhances discretion, it also provides the judge with the means for making wide-ranging value judgements which may go unchecked because of the absence, in many instances, of a written opinion and the paucity of cases which are appealed. It is the non-specific statute which provides the judge with a vehicle for imposing on others his own preferences for certain child-rearing practices and his own ideas of adult behaviour and parental morality". [When Parents Fail, at page 65 (1971)].
Exactly the same problem arises in relation to disputes between one of the marriage partners and the other.
Having stressed that there are no simple solutions to this very complex area of human relationships I would like to give a brief account of the specific provisions in the Bill.
Part 1 of the Bill is concerned with the general introductory provisions. Section 2 provides that the Bill is to come into effect a month after it has been passed. Section 3 contains an important definition of a "dependent child of the family", in regard to whom an order for maintenance may be made. Generally, a child will be entitled to be maintained by his parents until he reaches the age of sixteen years. However, in two cases he will be classed as a "dependent child" even though he is over that age. The first case arises where he is attending or where, if an order for maintenance were made, he would be receiving education or instruction at a university or other educational establishment on a full time basis, and is under the age of twenty-one years. In the present law, the parents' duty to maintain their children, so far as it is enforceable at all, ends when the child reaches sixteen years. In extending the age to twenty one years where the child is being—or would be—educated on a full-time basis, I feel that we are only bringing the law into harmony with the widely-held and growing appreciation of the importance of education at all levels. I should stress that we are here dealing only with the definitions of possible claimants for maintenance. We are not providing that simply because a child falls within the definition of a "dependent child of the family" he will have an automatic right to be educated and maintained by his parents. The question of entitlement in specific cases is one which falls to be considered when dealing with section 4 of the Bill.
The second case in which a child may come within the definition of a "dependent child" although over the age of sixteen is where he is mentally or physically disabled to such an extent that it is not reasonably possible for him to maintain himself fully. Such a provision— although drafted in somewhat stricter terms—already exists in regard to affiliation proceedings, and is part of the law of a number of other countries. I think that there would be common agreement that such persons should—again subject to the individual circumstances of each case—be entitled to look to their parents for continuing support.
As Deputies will notice from looking through some of the other definitions in section 3, the terminology is somewhat unusual and perhaps unfamiliar. I would refer in particular to the terms "maintenance creditor" and "maintenance debtor" which occur frequently in the Act. These terms derive from continental law but are now part of the general currency of international maintenance Conventions. They were used, for instance, in last year's Maintenance Orders Act which established reciprocal enforcement facilities for maintenance orders between this country and Britain. In essence, a "maintenance creditor" is a person —normally, it is to be expected, the wife—who obtains the maintenance order. The "maintenance debtor", as the name implies, is the person— usually, one would expect, the husband—against whom the order is made.
I now turn to the central provisions of the Bill, which are contained in Part II. These relate to maintenance orders and matters ancillary to maintenance orders.
Coming first to section 4 of the Bill, I think that it would be a fair comment to say that it is the most important section of the Bill. It is the section which defines the legal liability of spouses to provide maintenance for their family. It specifically directs the court to consider a number of matters in deciding whether to award a maintenance order, and it delimits the cases where an order may be made.
Subsection (1) (a) of the section provides that where it appears to the court, on application to it by a spouse, that the other spouse has failed to provide such maintenance for the applicant spouse and the dependent children of the family as is proper in the circumstances, then the court may make an order for maintenance. This order will provide that the other spouse is to make to the spouse who has applied to the Court periodical payments for the support of the spouse and dependent child of such amount as the Court may specify. This whole provision is to be read subject to subsection (4) of the section. Subsection (4) directs the Court, when deciding whether or not to make a maintenance order, or how much a maintenance order should be for, to have regard to all the circumstances of the case. In particular, the court is directed to have regard to the income, earning capacity, property and financial resources of the spouses and their children and also to the financial and other responsibilities of the spouses towards each other and towards their dependent children, and to the needs of the dependent children, including the need for care and attention.
As I have already stated in my opening remarks, this provision introduces two changes in the law, both of which are of major importance.
The first change is that it would no longer be necessary to establish that a spouse has deserted the family in order to obtain an order for maintenance. The idea behind the present requirement that desertion must be established, as well as neglect to maintain the family, would appear to have been that it must be left to the husband, who was presumed to be the breadwinner, to determine the standard of living of the family as long as the family remained together and that the existence of a right to sue for maintenance in that situation would be a divisive factor in family life. One should not, I think, brush aside as being obviously nonsensical —or, alternatively, as being anti-woman—the view that litigation for maintenance is incompatible with the idea of the family remaining together as a unit. In many cases I think the two things would indeed be incompatible. But this is not really the issue. What is at issue is whether there are some cases in which an action for maintenance could be taken without break-up of the family, and the widely-held view nowadays is that there are such cases and that indeed such an action could possibly be the factor that would save a family relationship by bringing to his senses a man who was squandering his income on gambling, for example.
Moreover, there is another point. The present law is such that it can force a wife to leave the family home before she can take any action to protect her interests. Even then, she has the task of convincing the court that she had this choice forced on her—that, in fact, her husband had already "constructively" deserted her. But a wife may be unable to leave as she may have no other place to go. She should have the right, if circumstances are such as to make it necessary, to seek maintenance while insisting on continuing her right to occupy the family home even if this means a risk of worsening what presumably is already a bad relationship. In short, if the marriage is breaking down, there is no reason why it is the woman who must leave the house as a preliminary to establishing her legal rights.
There are many advocates for changing the law in this respect as has been done in the Bill. The Committee on Court Practice and Procedure in their report recommended that "family default"—the basis of an order for maintenance— should be defined so as to include "such ill treatment, physical or mental, or other misconduct on the part of one of the spouses as would reasonably justify the other in leaving the family home although she or he does not do so and a failure by the spouse who earns to maintain the other." The committee also recommended that "family default" should include "failure of the spouse who is responsible for the support of the family to provide a reasonable standard of living for them having regard to the means and earnings of that spouse."
Quite clearly, the Committee envisaged by these definitions of "family default" that one spouse could take proceedings against the other where they are cohabiting.
It seems equally clear that the Commission on the Status of Women in their report envisaged that a maintenance order could be made where the parties continue to live together. The commission recommended, in paragraph 446 of their report, that in the event of "any dispute coming before the Courts it should be for the Courts to decide whether reasonable arrangements have been made between the husband and wife as to the disposal of family income in respect of (a) their current standard of living and (b) provision for the domestic home, family emergencies and old age."
It is interesting to note that The Council for Social Welfare, a Committee of the Catholic Bishop's Conference, in their recent statement on Family Law Reform take a similar approach to the matter. In paragraph 3.4 of the statement, the Council states:
Spouses look naturally to one another for support and the law should underwrite their obligations to each other. At present it is not specific enough in this regard. For example, in many families much hardship is caused by the husband who fails to hand over sufficient money for house-keeping expenses: in such cases the wife should be able to seek the assistance of the law.
In other countries the issue has received considerable attention and has been the subject of widespread and, at times, fairly heated debate. It is only fair to point out that, while the trend in common law countries is to move towards the civil law position of generally recognising an enforceable obligation to maintain even where the spouses are living together, there is still some resistance to this approach.
In England, the situation appears to be that, where as an order for maintenance in the High Court may be made and enforced where the spouses are living together, cohabitation by spouses after an order made by a Magistrates' Court will make that order unenforceable. In the United States, the rule still generally prevailing, although it seems to be coming under increasing attack, is that, where the spouses are cohabiting, no order for maintenance will be made. That rule was in fact criticised over 40 years ago by at least one writer, Blanche Crozier, who wrote the following:
So long as the spouses are living together, the wife's right of support is not a right to any definite thing or to any definite amount even in proportion to the husband's means. ... To be sure, it is said that he should support her with his means, but that is no more than an ideal with which he may or may not comply.
Two other American writers— Krausopf and Thomas—writing last year, have criticised the courts' noninterventionist attitude in this regard. They comment:
How ironic it is that the courts' refusal to entertain these requests indirectly encourages a separation of the parties and a complete breakdown of the family unit.
Yet, as is so often the case where one is dealing with any aspect of family law, there is another view and one which is by no means confined to people who could be regarded as ultra-conservative. The Ontario Law Reform Commission, whose studies and reports on family law have been of great assistance, even to many countries far removed from Canada, have taken the view in their most recent Report, entitled Support Obligations and published only a couple of months ago, that in regard to maintenance, the failure by one spouse to maintain the other should not be the basis, in itself, of proceedings, and that “the court should not be made to serve as a vehicle for formal State intervention into domestic disturbances, which could far better be settled by the spouses themselves or with the aid of marital counselling.”
I have given this quotation, not because I accept it—which, as the Bill shows, I do not—but to illustrate once again that we are not dealing with issues where one can say categorically that one position is right and another wrong, but with issues where the best attainable is a solution which will still have disadvantages. However, having given this Canadian view against the solution proposed in the Bill. I feel justified in balancing it with another Canadian view, this time from the Canadian Chief Justice, Bora Laskin, who in the course of a well-known decision Murdock v. Murdock made the observation that “the better way is not the only way”.
Thus, I think we would all agree that it would be better if spouses would settle their mutual obligations without resort to court proceedings, but I think we must accept that, at the end of the day, and even in a situation where spouses have had the benefit of the best that can be got by way of marital counselling, there are likely to be situations where the husband, assuming he is the breadwinner, cannot be persuaded to meet his obligations otherwise than by court procedures. I do not think that the existence, in the background, of this legal sanction, if I may call it that, will be a divisive factor in family life. For the vast majority of married couples, I hope and believe it will simply be an irrelevance.
Of course the proposal in the Bill leaves itself open to the possible objection that it will encourage spouses to resort to litigation because of trivial disputes. Again, this is a risk that cannot be dismissed out of hand. There is always the possibility that some trivial and undeserving proceedings will be brought. However, the experience in other countries where spouses do have a right to an enforceable order during cohabitation suggests that there is no substantial danger in this. In the ordinary cases of everyday arguments about the household budget, it is not likely that the spouses, if their relationship is otherwise satisfactory, would even contemplate a resort to the law.
In the case, however, of a stubborn refusal by a spouse to give his family adequate maintenance, it seems only just that the other spouse should be enabled to protect the interests of the family—especially the children—by being entitled to take maintenance proceedings. We must concede the possibility that some trivial cases will be taken, but this is surely a worthwhile price to pay for the security the provision will afford in those cases where wives and children are at present being seriously neglected by the breadwinner of the family.
I have mentioned earlier that the Committee on Court Practice and Procedure recommended that "family default", rather than desertion, should be the basis of an order for maintenance. Their report, in paragraph 44, lists the situations in which it would be appropriate to provide for the grant of maintenance orders and in fact recommends that list as a definition of "family default". Having considered the matter fully, I believe the formula incorporated in section 4 (1) of the Bill, a formula which in effect is a shorter definition of family default, covers fully the same ground as that covered in paragraph 44. In other words, I am adopting the committee's recommendations in substance, even though not in the form suggested.
The second major change in the law which section 4 proposes is that both spouses, rather than, as at present, the husband alone, should be liable, so far as is proper, to maintain the family. Both the Committee on Court Practice and Procedure and the Commission on the Status of Women recommended this change in the law. By that I mean that they recommended it in general terms, but the particular way in which the Bill proposes that the principle should be enacted into law is another matter and one that, I think, deserves careful thought.
The basic principle that a married woman has, or at all events may have, a moral obligation in relation to the maintenance not only of her children but, where the need arises, her husband as well is one which most people accept. The problem arises when one attempts to translate that into an enforceable legal obligation. What precisely is to be the nature or level of that obligation and what is its relationship to the husband's obligation? Are we to look on the wife's obligation as in some way a secondary or subsidiary one, to be invoked or enforced by law only if and to the extent that the husband fails? If so, the law should attempt to give expression to this concept, difficult though it might be. Are we, on the other hand, to see the wife's obligation as being exactly similar to or equal to the husband's, and to be expressed in identical terms in the law? If so, there is no technical drafting problem, since one simply uses the same terminology in relation to the obligations of both spouses. This in fact is what the Bill does. But we should be clear as to the possible implications. If the wife's obligations are stated in the same terms as those of her husband, what happens if a wife's application for maintenance is met with the response: "I have no more obligation to her than she has to me. Let her find a job, just as I have to do"?
If anybody should think that this is fanciful, let me quote a leading American authority, Professor Kanowitz, who has said this:
Support obligations within the family cannot be considered in complete isolation from other legal and social phenomena. They are, for example, inextricably bound up with the matter of general employment opportunities for married women... The allocation of support obligations within the family is also profoundly influenced by the level of technological developments within any country—since it may directly affect the time required to perform, and thus the monetary value of, household tasks.
Obviously, the traditional type of family structure in this country involves the husband going out to work and the wife staying at home performing a wide range of activities in regard to the children and the home. Of the nature of things in this structure, it is generally the husband who will earn the money out of which the food and clothing are purchased. This is not, of course, to suggest for a moment that the household activities of the wife are of little significance even in the strictly financial sense—let any husband who doubts this see how much it costs to employ a housekeeper or a cook. The point is that, whilst of very great economic benefit to the family, the wife's activities in the home bring no tangible monetary income for the family. What should it mean, therefore, to impose a duty on a wife to maintain the family? Should it mean that she should be required to leave her home and take up work?
Is it possible for a statutory provision to lay down specific guidelines to the Court in this regard? As may be seen, these are very important questions which required very considerable analysis. Such analysis must also take into consideration changing views in Western countries regarding the role of married women and the increasing propensity of married women to stay in their jobs after they get married, and of course the possibility of further changes in the years ahead. One problem about drafting statutory provisions is that what may be good law for today may, in such a volatile area, very shortly be rendered unsatisfactory by shifts in social attitudes and practice.
As I have said, one possible solution would be to impose upon the wife a limited duty to maintain: for instance one limited specifically to cases based on the age or infirmity of her husband. This in fact appears to be the position in England. It is a defensible position but, for a start, it is one that still involves differentiation between the sexes and, besides, one can readily conceive of situations, even if a few in number, where such a formula would not yield a fair result.
The solution which I believe, after much consideration, to be the fairest and most practicable, is to entitle either spouse to apply to the Court for a maintenance order against the other spouse where the other spouse has not provided maintenance that is proper in the circumstances. In other words, the obligation on husband and wife is expressed in similar terms but it will be left to the Court to decide on its application. This is provided for in section 4. The Court, in determining whether the other spouse has provided proper maintenance, is required by subsection (4) of the section to have regard to all the circumstances of the case. Moreover, the Court is specifically directed to have particular regard to the income, earning capacity, property and financial resources of the spouses and children as well as to the financial and other responsibilities of the spouses towards each other and towards their children and the needs of the children including—and I would like to emphasise this—the children's need for care and attention.
Such a formula will thus require the Court to look not merely to the financial aspects of a family dispute about maintenance, but also to the non-financial aspects—the position of the children, their need for care and attention, and the responsibilities of the parents towards them. It would be a futile task to attempt to spell out in legislation these needs and responsibilities—obviously they will vary in each case depending on the individual circumstances. However, the specific reference to these non-financial aspects of family relationships, and in particular to the need of children for care and attention, is designed to ensure that a wife may perform her activities within the home with confidence that, in fulfilling such a function, she will, in the normal case, be doing something which the section envisages as discharging her obligations to the family.
It is necessary, however, to sound a note of caution here. Although the High Court and Circuit Court have under the Guardianship of Infants Act experience of maintenance applications which are based on a statutory provision which does not distinguish between husband and wife as regards their maintenance duties towards their children, it will be a new task for the District Court to make decisions in this area. I do not want to blur the significance of what is involved. A Court decision which determines what is the duty of the wife to maintain the family in an individual case involves, not just a factual assessment of the case, but at least some degree (and at times a substantial degree) of a value judgment on the part of the court as well. In the area of husband-wife relationships there are many points of view among the public—and presumably on the judicial bench—so the possibility of differing value judgments must be accepted as inherent in the proposals —and there is no way of avoiding it, other than by making rigid rules which, although they reduce judicial discretion and thus the scope for divergent views, would be liable to be inappropriate and to cause hardship in individual cases. In many legal areas and for a long time past disputes between citizens and indeed between citizens and the State had to be resolved by judicial decisions that were in effect value judgments. This is not a new legal dilemma and appellate courts have by and large satisfactorily removed citizens impaled on its horns.
One matter which is raised in general terms by section 4 of the Bill is the question of the duty to maintain children. The present law is that the deserting husband may be sued by his wife on behalf of herself and their children. The proposed provisions enable one spouse to take maintenance proceedings against the other spouse on behalf of himself or herself and children where the other spouse fails to provide proper maintenance for the family. The section, therefore, entrusts the "innocent" spouse with the task of representing the interests of the children in an action for maintenance against the defaulting spouse. I believe that this is the right approach, taking account of the general desirability of avoiding unnecessary "outside" intrusion on a family's affairs and taking account also of other legislation in being whereby children who are seriously neglected can be protected through the action of the local authority, legislation which incidentally is expected to be further strengthened in the near future. However, in certain exceptional cases, the Bill—in section 4 (1) (b)—provides that a third party may take proceedings against a parent on behalf of the children. These cases are where one parent is dead or in desertion or where the spouses have separated.
In such cases, it is not reasonable to assume that the children's interest would be protected—indeed, in the case where one spouse is dead the children would, if no third party action were permitted, be given no rights at all under the Bill. Much the same applies in cases of desertion or separation. I do, of course, recognise that there exists some slight risk that, for example, a widow bringing up her children in a perfectly reasonable and responsible way, and in the way she thinks right, may under this provision find herself hauled into court by an officious neighbour with other ideas on child-rearing. I believe that the risk is slight—the risk of frivolous proceedings is one which all citizens are exposed to—and, if it should happen, the court can be depended on to give short shrift to the complainant. I think it is an acceptable risk when set against the case, on grounds of humanity, for allowing a third party intervention to deal with a situation where the child has not a second parent to protect its interests and the surviving or remaining parent is not in fact properly caring for it.
I turn now to other aspects of section 4. Subsection (2) provides that the court is not to make a maintenance order for the support of a spouse where he or she is in desertion. This continues the common law rule. But it should be noticed, in this context, that "desertion" is defined in section 3 (1) to cover cases of "constructive" desertion, where one spouse by his or her conduct has made life so intolerable that the other spouse is justified in leaving the home.
Subsection (3) provides that, where an applicant spouse commits adultery which the other spouse condones, connives at or conduces to, then the adultery cannot be raised as a ground for refusing to make the order. If, however, the adultery has not been condoned, then the court has a discretion as to whether to refuse to make an order. This is a change from the present law whereby uncondoned adultery will always disentitle a wife to maintenance. It appears unduly harsh to condemn a spouse to a lifetime without maintenance simply on account of one act of adultery, irrespective of the circumstances which, perhaps, could include a previously long-established pattern in adultery by the other spouse.
Section 5 provides for cases where a maintenance order may be discharged or varied. It is drafted so as to protect the interests of the wife and children—and from now on I will refer to "wife" rather than "spouse" since I have explained the provision regarding the spouse's maintenance liabilities and the use of the word "wife," although strictly speaking it is inaccurate, will highlight the types of cases which will be likely to be affected by the other provisions of the Act, at all events for some time. Section 5 (3) contains a provision about condoned and uncondoned adultery in regard to discharge and variation on the same lines as the provision in section 4 in regard to the making of the maintenance order.
Section 6 enables the court to make an interim order in cases of need. It may be made without very much formality in regard to proof of a prima facie case since the aim of the section is to ensure that cases of need will be met quickly. To an extent this may be criticised as rough justice but desperate diseases require desperate remedies and the possibility of an unwarranted imposition upon a defendant under the section is likely to be minimal in contrast to the general benefit which the provision will confer on badly neglected wives and children.
I would like to place on record that in this regard the Bill does not give effect to the proposal by the Committee on Court Practice and Procedure that interim orders should be directed against the local authorities who could then pursue the defaulting spouse for reimbursement. This proposal has not been accepted since it envisages that the public authorities would pay the actual amount of maintenance awarded by the court and not a standard rate of allowance. Whatever might be said in favour of such a proposal, it would inevitably mean discrimination in the distribution of public moneys between individuals based on a judgment in a private suit or, ultimately, on the wealth of the defaulting spouse. The local authorities are already able to provide assistance to families in need irrespective of any court order. A Bill placing the right to assistance (currently called home assistance) on a more secure statutory foundation is now at Committee Stage in the Dáil. Moreover, where a husband has deserted his family, the wife is entitled to an allowance from the local authorities.
Section 7 of the Bill has a twofold object. Firstly, it proposes to allow an agreement between a husband and wife relating, broadly speaking, to the financial rights and obligations of the spouses towards each other to be made a rule of court and enforceable as a judgment of the court either in the State or abroad. Secondly, it proposes that a provision in the agreement covering maintenance payments for the support of a spouse and dependent children of the family will, once the court order is made, be enforceable through the attachment of earnings procedure spelled out in Part III of the Bill.
I think that there is general agreement that, in so far as it can be achieved, the two partners in a marriage should settle their differences by agreement between themselves rather than in a court of law, where the ashes, so to speak, of their marriage will be raked over and over. The problem in regard to existing separation agreements is that they may be enforced only as contracts. Therefore, if one of the parties decides to renege on his or her promise, the injured party has to attempt to enforce the agreement as a contract, and this is particularly difficult where the defaulting party leaves the jurisdiction. It is also expensive.
Separation agreements cover a number of other matters in addition to maintenance of the spouse and dependent children, and enforceable rights may be conferred on children who are not dependent. All the rights and liabilities of the parties to the agreement and third parties who are children within the meaning of section 8 of the Married Women's Status Act, 1957, may be enforced as if the agreement were a judgment of a court. Where the agreement is made a rule of court it will, of course, continue to exist as an agreement. The reason for making it a rule of court is better to protect the rights of the spouses and the children by making them more easily and effectively enforceable. It is important to note that, before the agreement is made a rule of court, the High Court judge or the Circuit Court judge, as the case may be, must be satisfied that the agreement is a fair and reasonable one that protects the interests of the spouses and the dependent children.
Moreover, as I have already indicated, that part of the court order that relates to the maintenance of the spouse and the dependent children will be deemed to be a maintenance order for the purposes of enforcement by attachment of earnings. It will not be a maintenance order for other purposes. In other words, it may not be varied, unless the agreement specifically so provides. However, if, for example, a wife finds that what she is being allowed under the agreement is not sufficient or if her husband's financial circumstances alter for the better, there will be nothing to prevent her applying for a maintenance order in the ordinary way under section 4 of the Bill. In deciding whether to grant or refuse such an order, the court will, of course, have to take all the circumstances into account, including the fact that she is already receiving payments under the agreement as made a rule of court.
Before I leave this section, I should mention that an application to make a marital agreement a rule of court may be made by either spouse and that the application has to be made to the High Court or the Circuit Court. Under the Circuit Court (Registration of Judgments) Act, 1937, any judgment of the Circuit Court may be registered in the Central Office of the High Court in the same way as a judgment of the High Court and may also be registered as a judgment mortgage under the Judgment Mortgage (Ireland) Act, 1850. There are no similar provisions in regard to District Court judgments.
Turning now to section 8 of the Bill, this is a section designed to give practical assistance to a wife where a maintenance order is made. In the normal case it is envisaged in the section that the court will direct that the maintenance order is to be paid to the District Court Clerk for transmission to the wife. The advantage of this will be that the District Court Clerk will be able to supervise the payments by the husband under the order. By subsection (2) of section 8 he is entitled to take steps to recover arrears, by such method as he considers reasonable. This may be by way of an application for an attachment of earnings order. It could also, however, in appropriate cases, be under the Enforcement of Court Orders Act, 1940.
The court in certain cases will not direct that the payments should be made to the District Court Clerk. These are the cases where the wife asks for this not to be done and the court considers it proper not to do so. The whole section is without prejudice to the right of the wife to take proceedings for arrears.
One matter I should mention at this point is a recommendation of the Committee on Court Practice and Procedure relating to official assistance to maintenance creditors. The recommendation is in page 16 of the report under the heading "Legal Aid Provisions" and is to the effect that a solicitor should be officially employed in Dublin to devote all his time pursuing default cases and that, outside Dublin, a corresponding service should be provided by the local State Solicitor. This recommendation is not being adopted, for the present at any rate, and for two reasons. The first is that, instead, the Bill proposes that the kind of service envisaged by the Committee should be provided by the District Court Clerk. There is practical experience of the operation of a somewhat similar kind of system in England and our information is that it has worked well. At all events, I believe that that is the right system to adopt at this point especially— and here I come to the second reason —because, as the House is aware, we have a Committee, presided over by Mr. Justice Pringle, investigating all aspects of legal aid in civil cases. I think it would be undesirable, as well as being unnecessary, to prejudge their recommendations.
I now move to Part III of the Bill which is concerned with attachment of earnings. I will not go into detail on the specific provisions, which are of a technical nature. The purpose of these provisions is to give better security to the wife, where the husband is in employment by enabling her, if he defaults on an order for maintenance, to obtain an order from the court requiring the employer to deduct a specified sum from the husband's earnings and to transmit the money to her.
It has been frequently pointed out in many countries that attachment of earnings does not yield very satisfactory results. The husband, by moving from job to job and sometimes from country to country, may be able to evade his full liabilities, at all events for some time. Moreover, of its nature, attachment of earnings can only apply to earnings and the procedure does not apply where the husband is self employed as, for instance, where he is a farmer.
Nevertheless, this is not a reason for rejecting the scheme before it has been given an opportunity to work. When considering the cases in which it will be called into operation by the courts, it must be remembered that there will also be an indeterminate number of cases which do not appear in any statistics since the very existence of the machinery has had the desired effect of encouraging the husband to pay on foot of the maintenance order.
Turning to some specific provisions in Part III, it is worth pointing out that the attachment of earnings machinery may be invoked, not only in regard to maintenance orders and rules of Court under section 8 of the Bill, but also on foot of affiliation orders, orders for maintenance under the Guardianship of Infants Act, 1964 and alimony ordered under proceedings for a divorce a mensa et thoro. Section 15 is a provision designed to ensure that no difficulties will arise in regard to persons in the service of the State against whom a maintenance order is made. The section provides specifically how such a question is to be determined in various cases. Difficulties might otherwise be caused in determining who should be held responsible for deduction of payments.
Section 19 contains a double sanction. If the husband or his employer unreasonably fails to comply with the duties imposed by Part III and as a result the wife and children suffer loss, they may recover from the husband or employer, as the case may be, a sum representing what they have lost, or part of such sum as the court thinks proper. Moreover, certain wilful breaches by the husband or employer are made criminal offences by section 19 (2) and (3).
Part IV of the Bill contains a number of changes in a variety of areas. Section 20 provides that where a spouse gives the other a household allowance, then in the absence of any agreement to the contrary that allowance and any interest in property bought out of it will belong to the spouses jointly. To take a practical example: if a husband gives his wife £20 house-keeping money, then unless they agree otherwise, they will be joint owners of the £20. If, one week, the wife buys a kitchen clock out of the allowance, then both spouses will be joint owners of the clock. Under the present law, the husband would own the clock, since the money from which ti was bought is likely to be construed as his rather than partly his wife's.
Up to a point, this provision is based on an English provision introduced in 1964 which has been recommended for acceptance here by the Commission on the Status of Women. The English provision—section 1 of the Married Women's Property Act, 1964, reads—
If any question arises as to the right of a husband or wife to money derived from any allowance made by the husband for the expenses of the matrimonial home or for similar purposes, or to any property acquired out of such money, the money or property shall, in the absence of any agreement between them to the contrary, be treated as belonging to the husband and wife in equal shares.
This provision, however, has involved a number of problems of interpretation and has indeed been the subject of considerable criticism virtually from the time of its enactment. Partly for this reason, section 20 goes further than the English provisions, and it is hoped that all the major problems of interpretation affecting the English provision have been taken into account and resolved. The reform is a desirable if relatively limited one. It is not coercive, in that the spouses are free to agree on any kind of ownership of the household allowance or things bought out of it as they see fit. It is where they do not make any agreement that the provision will take effect.
Section 21 contains the important provision, recommended by the Committee on Court Practice and Procedure, that the court may, where there are reasonable grounds for believing that the safety or welfare of the other members of the family requires it, make an order excluding a spouse from the family home. The order is to last for such period as the court may specify and is to be supported by criminal sanctions. It is, of course, a drastic step to order a person—and we are speaking here normally of a man—to leave his own house. But it is a still more drastic alternative to permit a man who persistently batters his wife and children to be passively afforded facilities to continue to do so. A battered wife may, of course, invoke the criminal law, but there are frequently compelling reasons for her not to do so. The provision in section 21 should give the wife a greater degree of security and should, at least in some cases, remove the necessity for her to leave her own home, which is on occasions the only real alternative to ordering the husband out.
I turn now to the remaining provisions.
Section 23 raises the jurisdiction of the District Court in maintenance cases to £40 per week for a spouse and £10 per week for each child. These figures are high. Assuming that there are two children, the wife may take proceedings in the District Court seeking an order for £60 per week. Even in these days and even as a maximum this is a large amount, since the husband must be allowed to have money for his own maintenance and also pay tax. (Incidentally, section 23 makes all orders under the Act payable without deduction of tax.) The figures of £40 and £10 were recommended by the Committee on Court Practice and Procedure.
Section 24 makes all proceedings under the Act private. This was also recommended by the Committee on Court Practice and Procedure. Here, once again, I think I should sound a note of caution. As the section shows, I accept the committee's recommendation and I think it is fully justified. The note of caution is directed at the problem that must arise sooner or later if we continue very far on the road towards making court proceedings private. Basically, the public interest requires that justice be seen to be done and, as part of the process, that it be administered in public. I think there is some danger of our sliding into a too ready acceptance that all sorts of proceedings should be in private. The scope for this approach is limited. I say this while being quite satisfied that what is proposed in this Bill is justified.
Section 26 makes a number of amendments in regard to affiliation proceedings. It extends (in paragraph (a) the limitation period for taking proceedings to two years from the birth of the child or longer in certain cases where the father has contributed to the maintenance or has been abroad. It raises the maximum amounts the District Court may award to £200 for apprenticeship or funeral expenses and £10 a week for the maintenance and education of the child. This is the same figure as that which the District Court can award under a maintenance order. I should stress here—because it tends to get forgotten—that the High Court has unlimited jurisdiction in maintenance and affiliation proceedings. Section 26 also confers privacy on affiliation proceedings.
One recommendation of the Committee on Court Practice and Procedure which is not included in the present Bill is that relating to the protection of the family home where a maintenance order has been made. This is because the protection envisaged by the committee, which was necessarily limited by their terms of reference, related only to cases involving desertion and maintenance. I have been analysing the question of protection of the family home for some time and, on the basis of this, I recently submitted detailed proposals to the Government.
As a result, and as I have already said in a public statement, I was last week given authority by the Government to draft a Bill to give effect to these proposals. Drafting is now in progress and I hope to introduce the Bill during the coming session. There is, however, no way of anticipating what problems the drafting process will throw up. To rush out a Bill on the family home could involve a risk of grave injustice arising through some unperceived loophole and would be a highly irresponsible action on the part of a Minister or Government.
This brings me to the end of what I want to say by way of explanation of the main provisions of the Bill. I believe that the Bill provides a modern maintenance code which may be applied to all sections of our community with justice and humanity. At the same time, I am conscious of the fundamental importance of the changes which the Bill brings about and of the fact that, in passing the Bill, we shall in some respect be taking a step into the unknown. It is true, of course, that legislation can be amended but if legislation were to turn out to be seriously faulty, much damage could be done in many individual cases before remedial action could be taken. Besides, the process of amendment could itself be very difficult.
As I mentioned earlier, a great deal of discretion will be given to district justices and circuit judges throughout the country—as well, it is true, as the High Court, but the High Court has the advantage of being a centralised court, with greater opportunities for the judges to discuss their approaches to difficult problems. This may create difficulties and it is as well to face that fact frankly. There is no way of avoiding the problem of different judges or justices making different value judgments on family affairs and it is a necessary price to pay if we are to have a law that will be flexible and capable of responding to individual cases. Yet it is a price which we should be fully aware we are paying.
Before concluding, I think it right to say a few more words on a point I touched on at the beginning, that is, the criticisms that have been made of delay in the introduction of these proposals. I hope that what I have said in my comments on the Bill will go at least some way towards explaining the range of questions that arise on any Bill of this kind. The processes involved in the production of this or any similar Bill are long and complex—tedious if one cares to use that word—but, I am afraid, necessary.
They are necessary for at least two reasons. The first is that, however much the Government are assisted by reports or other recommendations— and I think I have shown how much assistance they have received in this instance—they cannot, even if they so wished, cast off any part of the responsibility which they, as a Government, must bear for the legislation they introduce. For this reason, all proposals must be fully analysed, the consequences examined, alternative ways of approach considered, observations of various Ministers sought, and the detailed results placed before the Government for their consideration and decision. In many cases these proposals involve extensions of or interpretations of recommendations made by a committee or commission. In other cases they may be additional proposals or, of course, alternatives. But, when all that work has been done, there is still the slow and difficult task of drafting to be done. This is the second of the two reasons I have mentioned why progress is inevitably slow.
I feel sure that when a Bill such as this appears, many people could look through it without giving a thought to the highly-skilled professionalism that goes into its production. But, even given the specialised skills of a professional draftsman, a draft Bill, unless it is of the simplest kind, almost always has to go through several drafts before it reaches the stage where it is sufficiently precise and accurate to be acceptable to the draftsman himself or ready to be presented for approval by the Government.
Moreover, the process of drafting and of examination of a draft invariably throws up several new questions for decision—questions that were not even adverted to earlier. The Bill now before the House is, in fact, the sixth draft. It might be alleged against me that “qui s'excuse s'accuse”, but I make these points not to excuse delay but to aver that there has been no delay.
This Bill has very significant legal and social implications for our society but after full and careful examination of these implications, I am satisfied they are for the benefit of our society and I commend this Bill to the House.