With regard to Private Members' Business tonight and notwithstanding anything in Standing Orders, Members will be called as follows in the debate: at 7 p.m. a Government speaker; at 7.3 p.m. an Opposition speaker; at 7.20 p.m. a Government speaker; 7.40 p.m. an Opposition speaker; 7.55 p.m. a Government speaker and at 8.15 p.m. an Opposition speaker to conclude. At 8.30 p.m. if the proceedinngs have not been concluded the Ceann Comhairle shall put forthwith the question necessary to bring them to a conclusion.
Private Members' Business. - Conflict of Laws Reform Bill, 1985: Second Stage (Resumed)
Question again proposed: "That the Bill be now read a Second Time".
Is that agreed?
Yes.
How am I to operate the arrangements as it is now four minutes past seven?
The Government speaker scheduled from 7 p.m. to 7.03 p.m. will not speak.
I will make up the time.
I understand Deputy Shatter has three minutes left.
I will conclude by listing the reasons why I think the Bill should be opposed. The first reason is that it provides for a dual system of recognition in relation to foreign divorces that differentiates between Irish citizens and non-nationals residing in this country in that it would provide for a more liberal system of recognition for non-nationals regardless of the length of time they have lived in the Republic. In the context of Irish citizens it would curtail the circumstances in which we currently recognise foreign decrees of divorce and, as a result, it could contribute to the creation of more limping marriages than we have at the moment, that is, marriages regarded as dissolved in a foreign country but regarded here as still subsisting. That dual system of recognition, treating families living in Ireland differently from other families living here could be, and probably is, unconstitutional. If this Bill became law it would add a great deal of additional uncertainty and confusion to the law as it stands.
The real intent of this Bill is not to abolish a wife's domicile of dependency but to put up a political smokescreen, to avoid confronting the need for a divorce referendum and domestic divorce legislation. It is another Irish solution to an Irish problem and the Bill should be opposed. There is a remarkable contrast between the confused and obscurantist provisions in this Bill and the clear, concise and welcome reforms in the Government's Bill which was published today. That Bill would remove much of the uncertainty from this law and would avoid the discrimination and peculiarities built into the Fianna Fáil measure.
Is áthas liom go bhfuil deis againn an Bille seo a phlé sa Dáil, Bille a chreidimse a bhfuil tábhacht faoi leith ag baint leis chomh fada agus a bhaineann sé go háirithe le go leor de mhná tí na tíre. Ba mhaith liom mo bhuíochas a ghlacadh leis na Teachtaí ar an dá thaobh den Tí a labhair faoin mBille.
Confusion has marked the Government response to this Bill, and that is putting it mildly. Last night the Fianna Fáil Bill was debated in this House and the Minister came in to reply. On the first page of his speech he said that "the Government have proposals of their own which are being drafted at the moment and will be circulated". What was printed in after that was deleted conveniently and the word "tomorrow" was handwritten in the script. That shows the haste with which the Government acted as a result of our Bill.
It is four years since the Government promised to abolish the dependent domicile of married women. It is four years since the Law Reform Commission produced their Working Paper No. 10. It is nine months since the commission made their final report. It is one week after we produced our Bill and, strangely enough, it is one day after we introduced our Bill. The Government have now produced a Bill of their own. It is right to say that every effect has a cause. I wonder which of these causes has stimulated the Government into action.
The Law Reform Commission were established by the Law Reform Commission Act, 1975, as a statutory body to keep the law of the State under review at all times and, in accordance with the provisions of the Act, to undertake examinations and to conduct inquiries of the law with a view to reforming it and to formulate proposals in relation to law reform. The Attorney General made a request to the Law Reform Commission asking them to examine the law as it related to the domicile of married women. The commission set about their work and they decided not just to confine themselves to that area but to examine the law on domicile in total. They produced Working Paper No. 10 in 1981 and this was followed by their full report in 1983.
I think it is appropriate at this time to send, as did my colleague, Deputy O'Rourke, last night, my wishes to the Minister of State with responsibility for women's affairs. To give her her due, she has worked extremely hard since she became Minister of State to bring this legislation before the House. We talk about Dáil reform but one of the areas most in need of reform and definition is the area for which she has responsibility. It is quite clear she has not been given the kind of political power or clout necessary for her to be regarded as the boss or to be taken seriously by the Department of Justice or by the Department of the Taoiseach.
The domicile of a person is the country where she or he intends to live permanently or indefinitely. We know there are three different types of domicile. There is the domicile of origin which is the domicile a person acquires at birth. The domicile of choice is acquired by a person by living in a country with the intention of continuing to do so permanently or indefinitely. Where a person abandons his or her domicile of choice in a country but does not acquire a new domicile anywhere else, I understand the domicile of origin will be revived and that continues to govern his or her legal position until the person acquires a new domicile of choice or a domicile of dependency. That brings us to the third type of domicile, namely, the domicile of dependency. This arises in respect of married women, children under 21 years and mentally disturbed persons. Therefore, the domicile of children will depend on the domicile of the father except in special circumstances which there is no need to go into now. The domicile of a married woman, on the other hand, whether over or under the age of majority, is the same as that of her husband, and any time he chooses to change his domicile, her domicile changes as well. Strangely, if the husband is under the age of majority, his wife's domicile depends in our law on the domicile of the person on whom her husband is legally dependent, which I suppose would mean her father-in-law.
Domicile of dependency is that most women have to be concerned about because it is the one which creates most problems. As Deputies have said here, a woman's domicile on marriage becomes that of her husband and remains so until the marriage is terminated by the death of either spouse or by a dissolution that is recognised here. Therefore, if a woman born and at all times living in Ireland marries someone who lives in another country, her domicile immediately becomes that of the other country although she may never have been to the other country, and if her husband wants to move anywhere in the world her domicile would change to the spot that he would have chosen to remain in.
The policy of subjecting the domicile of a wife to that of her husband makes social and cultural assumptions that are at variance with today's standards. The concept of unity of domicile is an artificial one which in some cases might not bear any relation to the actual circumstances of the spouses because a wife can be domiciled in a country with which she has no real connection.
The concept of domicile of dependency is, as we heard here last night, out of tune with the mainstream of the law relating to the rights and obligations of spouses, for example, maintenance, succession, guardianship and so on in respect of which the general principal of equality of rights applies. The Law Reform Commission stated in Working Paper No. 10 of 1981 that the concept of domicile of dependency might offend against Article 40 of the Constitution because it discriminates invidiously between persons, even though Article 40, as we know, deals with personal rights, and some people might say that domicile would not be involved in the deciding of those personal rights. Nevertheless, domicile is used as a connecting factor in determining a large number of these personal rights, and Mr. Justice Walsh, in Gaffney v. Gaffney, expressed doubts as to the constitutionality of domicile of dependency in a case where a husband changes his domicile but a wife remains in the country of her domicile of origin.
We are proposing in the Bill to replace that concept with the concept of habitual residency. That is used increasingly in international conventions and municipal law as a connecting factor. For instance, it was used in the 1965 Succession Act. It is used in certain British statutes, such as the Domicile and Matrimonial Proceedings Act, 1973. It is being used in the EC, in the Convention on Jurisdiction and the Enforcement of Judgements, and the convention on the law applicable to contractual obligations.
The Bill makes it clear that although each spouse has an independent habitual residence, the habitual residence of one spouse may be taken into account in determining that of the other. It specifically states, and this is done to simplify matters, that when spouses are living together they are deemed to have the same habitual residence unless they can show that the contrary is the case.
The Law Reform Commission, as I said, examined whether it would be better to reform the law on domicile or to replace it by habitual residence. We have to pay some heed to the reports of the Law Reform Commission because they have facilities that we do not have to examine all aspects of law and to report thereon. After much consideration, the commission expressed the view that on balance the better course would be to replace "domicile" by "habitual residence". They had regard to the fact that having expressed the same view provisionally in Working Paper No. 10, the commission had not received any submission from any interested person or organisation arguing that such a step would be undesirable — the public had been asked to make submissions on the working paper.
This Bill is the result of much research by the Women's Committee of the Fianna Fáil National Executive. It is part of a comprehensive drive to bring about totally equal treatment in law for women. In that regard, I should like to pay tribute to those who worked so hard on this and to my colleagues on both sides of the House and in the Seanad who worked so well on a non-partisan basis on the Joint Committee on Women's Rights. We all worked together to improve the lot of women, whether married or otherwise. The political note brought into the debate last night by Deputy Shatter was regrettable. We did not have that experience on the committee and I had hoped it would not have been our experience here while discussing women's rights and the provision of equality for them.
The Bill proposes equal treatment for men and women in relation to divorces obtained elsewhere. As we all know, in Ireland if a man from here established domicile abroad, in England or America, for example, and then got a divorce, as the law stands this would apply automatically to his wife without reference of any kind to herself or her family or, more important, to their feelings. She has no choice but to accept that. We are proposing that this would not be the case in future, that the divorce would not apply here unless the wife agreed to accept the jurisdiction of a foreign court. Until then, she would continue to have all her own rights in Ireland as a married person.
The Government are opposing this Bill, through from the speeches made against it it is clear that their opposition is based on a different interpretation of what the Bill contains, totally different views as to what is desirable. The Minister opposes it because, he said, it opens a back door to divorce. He said the Government Bill will not include a wide extension of the rules of recognition. On the other hand, Deputy Shatter opposed the Bill for restricting the circumstances in which foreign divorces will be recognised.
The Minister stated last night that the Government totally agree with the abolition of the independent domicile of married women. Deputy Shatter said that such discrimination had beneficial aspects in some cases. The Minister said that the different rules for Irish and non-Irish citizens is the proper approach, and it is precisely this difference that I heard Deputy Shatter attacking last night. The Minister stated last night:
The Bill before the House is acknowledged by the sponsors of the Bill to be closely modelled on the Law Reform Commission's report on domicile and habitual residence as connecting factors in the conflict of laws and on the recognition of foreign divorce and legal separation—
The next two lines were deleted by application of a pen, and I will read what was in those lines:
and as such must be taken to be a serious and important proposal meriting a serious and considered response.
It is obvious that in the Department of Justice they looked on the Bill that we were putting before the House as something that was serious and important and which merited a serious and considered response but for some strange reason the Minister or someone close to him considered it necessary last night to delete those words. That was regrettable.
Our Bill is before the House. It took the publication of that Bill finally to bring the Government to their senses, to apply the pressure in the proper places so as to ensure that their Bill was published this morning but the Bill from this side of the House is a better one. It deserves the full support of everyone on these benches and I should like to see some people on the other side support it, too. We have made a genuine effort to grapple with a situation which has existed for many years. I regret that we did not have the opportunity when we were in Government to deal with the matter but we are attempting seriously to deal with it now. I am glad the Government have published their own Bill and also that, as suggested by Deputy O'Rourke last night, instead of having a six hour debate on our Bill and then a debate of the same duration if not longer on a Government Bill, the people opposite have come to their senses and decided that there should be a vote on this Bill this evening. Our Bill should be supported.
I accept fully the sincerity with which Fianna Fáil bring this Bill to the House. I am grateful to Deputy Geoghegan-Quinn for identifying for me what the erased words in the script were. I was not able to decipher them.
It was only a matter of putting the paper in front of a light.
My copy seems to have been Tipp-Exed on both sides. I believe that the reason for the deletion was that on full consideration of the Fianna Fáil Bill it was recognised that quite unintentionally the Bill would have other effects which would not warrant the support of this House. I hope to be able to explain why I think that was the case.
I welcome very much Fianna Fáil's move to bring forward Private Member's legislation. It is to the shame of the House that political parties, regardless of their participation in Government or otherwise, are not willing to promote items of legislation, or that groups of Deputies are not prepared to cross party lines to advance and promote Bills that would be of no particular cost to the State in terms of the budgetary position but which are desirable. I am convinced that the collective experience and wisdom of all the Members could show up many areas that are in need of reform. I, too, compliment the Joint Committee on Women's Rights and also the women's affairs group within Fianna Fáil who throughout a number of years have worked hard to bring about change. The House should be much more flexible in its approach to matters of this kind.
I have often had a swipe at Deputy Haughey in the House but I must compliment him also on the interest he has shown in what I will call this area of social legislation though in the narrower sense than the sense in which we often use the term. When Mr. Haughey was Minister for Justice he promoted and brought before the House items of legislation that were of major importance and which had massive effects on the social life of the country. One such piece of legislation that comes to mind is the Succession Act. I say this in a spirit of understanding the sincerity with which this Bill is being promoted and I say it also as a genuine word of compliment and of admiration for the work undertaken by Mr. Haughey in this kind of area during his time in the Department of Justice.
Having said that, there is something else I must say, though in a friendly spirit. On Friday last when I saw the presentation on television and heard Mr. Haughey interviewed on the subject of this Bill——
Deputy Haughey.
——it occurred to me that this was perhaps the lowest common denominator of agreement in Fianna Fáil on the subject of marriage breakdown. Perhaps I was very wrong in reaching that conclusion but it was what occurred to me on that occasion. However, I hope that is not the case and that the Bill does not represent the dust that is being thrown in people's eyes to cover Fianna Fáil's lack of position on other aspects of marital breakdown. Having examined the Bill since, it is my opinion that if its sole effect were to achieve the purpose described last evening by Deputy Haughey, namely, to remove the blatant discrimination against women that arises, not from the concept of domicile, but from the concept of the domicile of dependency, it should be supported by this side of the House, but what is being sought in the Bill is the abolition of the concept of domicile itself.
As has been pointed out by certain Members and as has been highlighted in the Law Reform Commission report and other reports, apart from divorce law there are many areas of our laws that are affected by the concept of domicile. Taxation is one such example because it depends generally on residency. In some areas the concept of domicile can play a key part in the matter of a person's liabilities — their current liability and the liability after death for capital taxation. There is nothing in the Bill nor in the Fianna Fáil speeches to indicate that such matters have been considered. This Bill should not be supported if only for that reason alone. Its remifications have not been teased out.
There was the English experience of several years ago when the abolition of the concept of domicile was considered but then it was decided that, because of the taxation implications, they could not afford to take that road. They have searched since for a solution but have not found one. Unfortunately, from our point of view we live in a very mobile world. Business people and others are moving frequently in and out of the country and if we were to pass a law, the effects of which had not been teased out in regard to the area of taxation, we would be doing a bad day's work. This Bill wanders into an area in which it has no place if its only purpose is to achieve the purpose outlined by Fianna Fáil at their press conference on Friday last.
The Bill will have another effect far beyond the removal of the discrimination against women who are stuck with this domicile of dependency and, that is, that Irish people are subject to the provision in our Constitution that we cannot pass a law permitting divorce. Without any question, if this Bill were to become law, people could circumvent the divorce provision in our Constitution. That might be good or bad but, as such, the Bill might be found to be unconstitutional or, worse, it would favour those who would be in a position to move in and out of the country either because of wealth, youth or their jobs, but it would fail to confront the dreadful issue and the awful problem that we must confront and that is the question of divorce.
Domicile of dependency is offensive and grossly unjust. The Government Bill deals with that point. The abolition of the concept of domicile would have much greater consequences in the area of divorce. Deputy Haughey described domicile well last night through it is a very difficult concept to define. The essential difference between domicile and habitual residence is the difference between a subjective and an objective examination of a person's status at a given time. Deputy Haughey said that to ascertain a person's habitual residence involves a much simpler inquiry than would be the case of establishing domicile. He said that while habitual residence is a factual matter, domicile is purely a legal concept.
I agree totally with that but let us take an example of an Irish person who qualifies as a doctor and who up to then has never lived anywhere but in Ireland. If, then, as many doctors do, he decides to go to Canada for a few years to earn some money and acquire experience so that he might come back here and establish a practice he will have acquired habitual residence in Canada. Such people do not have wealth in Ireland. Their property and perhaps their wives are with them in Canada. They thereby acquire, by any standards, the status of habitual residence in Canada but they never lose Irish domicile under Irish law because it is their intention to return after a few years.
On the other hand, a case of domicile in the extreme is an English case, the name of which I cannot remember, of a man born in Scotland who lived in England all of his life except for a few weeks holidays in Scotland each year, who during the course of his life committed himself to paper saying that his heart was in Scotland and that was the place to which he wished to retire. That man's domicile was determined by the courts to be Scotland, but by any standards he would have acquired habitual residence in England. It is to that legal system in the terms of this Bill to which he will be attached.
To take the example of the doctor, let us say he is married and goes to live in Canada with or without his wife and let us say both realise that their marriage has irretrievably broken down and they want to obtain a divorce. They are habitually resident in Canada and they obtain a divorce decree in Canada. They then come home and under this law that divorce must be recognised. Even if the wife has not gone to Canada and has remained here, provided she submits to the Canadian jurisdiction, they acquire the qualification to obtain a divorce under Canadian law which will be recognised here. That cannot happen under our law at the moment.
That is the second major problem with this legislation. I know it is not intended. If it were I would think that Fianna Fáil had been incredibly Machiavellian in all of this and that this was the great Irish solution to an Irish problem. If anybody on the far side of the House believes this is the solution, it is not. It is not the proper way to confront the problem of divorce. Because one could sidestep things very easily this way and because of the reasons I have given, this Bill could be found to be unconstitutional. I favour the removal from the Constitution of the Articles that prohibit the introduction of divorce law and that is the road we have to take. It would be wrong of the House to use a Bill like this to circumvent the provisions of the Constitution.
Many Fianna Fáil speakers have been very quick to associate this Bill with the proposals of the Law Reform Commission. The reality is that there are fundamental differences. I have outlined the concerns I have about this measure. The Law Reform Commission proposed in their most recent report in 1985 that domicile should go for divorce recognition purposes only and suggested a two tiered system which was far more severe than what is contained in this Bill. In other words, Irish citizens or people who had the connection in Ireland so described, could not use this law, if passed, to circumvent the constitutional provisions. They said in paragraph 7 of their recommendations for reform that the legislation should include a provision to the effect that the State may refuse to recognise a divorce or legal separation if such recognition is manifestly incompatible with the State's public policy. That is the reality.
The person who has gone abroad who can afford to maintain a home here and abroad would have an unfair advantage under this Bill. I put it to Fianna Fáil that this Bill has ramifications which they have not considered. I accept the sincerity of their position but, if the purpose of this Bill is to remove the discrimination brought about by domicile of dependency, then the thing to do is to remove the concept of domicile of dependency which the Government Bill will do. Unquestionably the issue of domicile is a complex and difficult issue which should be examined. The whole divorce issue must be examined as should also the position of matrimonial breakdown. If the purpose of this Bill is to remove the item of discrimination that Mr. Haughey mentioned last night——
It is Deputy Haughey. Deputies may think that the Chair is being particular or petty about this matter, but it is clearly stated in Standing Orders that Deputies should be addressed as such.
I beg your pardon, a Cheann Comhairle.
What the Deputy is doing now is creeping in generally and that is why I want to put this back on the rail.
I hope the example the Chair has made of me tonight will work well. I am delighted to see that Fianna Fáil put forward a measure like this, and we should see more of it. I accept the sincerity with which this Bill is promoted but it will discriminate in a different way in that it will give advantage to the wealthy and it will without question facilitate the circumvention of the provisions against divorce in the Constitution. There has not been a Fianna Fáil speech in this debate that would suggest that they want to do any of those things. I accept that neither Deputy Haughey, nor anyone in Fianna Fáil wants to do that, but if the sole purpose is to remove the discrimination so graphically described, they should stick to the Government Bill on this.
On behalf of Fianna Fáil I thank Deputy Molony for his remarks. It would not be appropriate for me to congratulate ourselves, so I will resist the temptation to congratulate Deputy Haughey, Deputy Geoghegan-Quinn and the other people involved in bringing forward this much needed legislation. I congratulate the Minister for Justice on the speed with which he responded to our proposals and on recognising that we had a partial case.
As law undergraduates at UCD, we had to study a subject which was rather grandly called private international law and it was under that heading that we learned about the question of domicile. I was fascinated with the subject as were my lecturers and professors by the tremendous academic theory and the arguments which surround this question of what constitutes domicile for legal purposes. It is still a fascinating academic subject but in practice it gives rise to decisions which are not only ludicrous but are manifestly unfair in many cases. When Deputy Molony referred to the case of the man born in Scotland, he made a case against himself because that man was held by the courts to be domiciled in Scotland simply because he wrote a letter to some distant relative in Australia saying that his heart was in Scotland. If that is not a ludicrous decision arising from this concept of domicile, I do not know what is.
The Bill put forward is a very minor Bill. Of all the legislation passed in this Dáil it is possibly the least in terms of practical change. The Bill brought forward by the Minister is even less important because it sets out to do only half of what our Bill will do if passed. We want to get rid of this concept of domicile and replace it by the more real, practical, understandable, explainable concept of habitual residence. In addition, we want to get rid of this ludicrous rule whereby the domicile of the married woman is with her husband. Despite the fact that the Government did not bring forward legislation, they have agreed that we are right to bring forward this Bill. It is good legislation. It is a desirable change. That is why the Government brought forward their Bill to incorporate that change.
With regard to this peculiar concept of domicile, one of the most ludicrous aspects of that whole archaic, outdated and historical branch of law was the rule that a married woman's domicile was in effect her husband's domicile. The net effect of that rule was to treat the woman herself as irrelevant — she was not a person, she was merely an appendage of somebody else. Deputy Molony mentioned people travelling between different countries, where one has to work out in detail a person's domicile. I have come across many cases, most of them can be found in Cheshire's Private International Law where the courts had to go through tremendous ramifications to figure out a woman's domicile by figuring out her husband's domicile. If ever there was a badge of servitude that was it. We decided that that should be removed even though the practical effect in terms of the number of people who would be affected by this change would be small. That is no reason why the change should not be introduced because it is a good, desirable one. I thank the Minister and the Government for recognising that. It is a progressive step. It is perhaps somewhat unfortunate that the matter had to be left to the Opposition. Nevertheless we welcome the Government's conversion in this regard and are glad to accept the minor concessions they are giving us.
I would ask the Minister for Justice, being represented this evening by the Minister of State present, to go the whole way and accept our Bill in its entirely. The concept of domicile is an extremely artificial and archaic one. Nevertheless it has practical effect in this sense, that there are many branches of law, such as intestacy, which depend on the domicile of the person about whom a legal matter has to be decided. For instance, if a person dies intestate the law applicable to the distribution of his estate will be the law of his domicile. Naturally the law relating to distribution in intestacy will change from country to country. Then the courts must decide where exactly he was domiciled. That is a concept that is rooted in history. None of the Government speakers has argued against the principle of changing the concept of domicile to that of habitual residence. Government arguments have been based on technicalities, on our legislation given rise to unforeseen effects. Had I the time I would be prepared to argue that these unforeseen effects are things that are seen only in the minds of Government Deputies who do not want to accept this Bill simply because it was brought forward by Fianna Fáil.
Deputy Molony mentioned that it could open the flood gates to divorce. Yet in the next breath he mentioned that he personally was in favour of divorce. The reality of the situation is that we have carefully provided against that in our Bill where, in section 11(3) there is an in-built presumption that if this concept of habitual residence is being used to evade the laws, including the laws prohibiting marital breakdown — they are part of the laws of this country—— then there is a presumption that the concept will not apply. We have endeavoured, in so far as it was possible for us to do so, to foresee that loophole and close it off.
If the Government are worried about other technical aspects of our legislation, I would respectfully submit to the Minister for Justice that he has a whole Department of legal experts and another in the Attorney General's Office available to him. There should not be any difficulty in solving those technical problems if the Government accept the principle of changing from domicile to habitual residence. I should like the Minister, when replying, to indicate to me whether the Government accept that principle because I have heard no argument against it. All of the arguments on the Government side have been based on technicalities.
I shall give the House the benefit of my experience in one regard, as to how artificial is this concept of domicile. For a number of years I practised in the taxation department of a large accountancy firm in this city. We were dealing with a number of multinational companies and with the tax positions of the executives of those companies resident in Ireland. From the tax planning point of view we took the person's tax position and, since personal taxation depended on domicile, we then decided in which country it would be to the taxpayer's advantage to be domiciled from the tax point of view. Then we read the various court judgments on domicile and we worked out seven or eight guidelines which the courts look at in deciding where a person is domiciled. We then did our best to fulfil as many of those as possible on behalf of the client. For instance, there were people buying graves in Canada and South Africa, buying plots of ground to be buried in here, writing letters expressing their wish to remain permanently in Ireland, or expressing a wish to go back to Canada. That is just a small example of how artificial is the whole concept. It is rooted in history and it is now time to sweep away all this archaic nonsense in many respects.
Had I the time I could give the House a few more examples which would demonstrate the artificiality of the whole concept of domicile. On the very rare occasion when I get a legal query which involves explaining domicile, I cannot do it. I cannot explain domicile to an ordinary layman who does not have legal training. It is an impossible concept, one that bears absolutely no relationship to practical reality as we know it.
The concept of habitual residence is something which is easily understood and can easily be grasped by the average layman. That is the sort of law we should be enacting. Those are the sorts of law we should have, laws easily understood and which can be readily grasped by the layman to whom, after all, they apply—
And woman.
Person.
And woman, my apologies. Government speakers have mentioned various other problems we have and have expressed some doubts about Fianna Fáil's willingness to legislate on those problems. Certainly we have many problems in this country relating to the status of women. Happily some of these problems have been removed. Many of our laws which discriminated unfairly against women have been swept away because of initiatives from both sides of the House. That is not something confined to the Fine Gael party, even though to read certain sections of the media one could be forgiven for thinking so.
We are not purporting to argue here this evening that this Bill will solve all the problems; of course it will not. I would describe it as a slightly progressive piece of social legislation. It will not be the end of all those problems, of legislating for the situation of marital breakdown, or for the removal of discrimination against women. We admit that it will not solve all our problems. It is designed to solve two specific problems. The Government appear to accept the principle that both those problems should be solved while in practice they are prepared to solve only one of them at this time.
Despite Deputy Molony's fine words and congratulations to us it would appear that the real objection to our Bill is that it has been brought forward by the Opposition, not the Government. That seems to be the real objection. If there is a more valid objection on the Government side certainly I have not heard it. Our Bill brings about changes which in reality and in practical terms are very small. It seeks to remove two serious anomalies in the law. The least the Government could do is accept it. It will not involve any sort of social revolution. In so far as the problem of marital breakdown is concerned Fianna Fáil will be quite willing to deal with that at the appropriate time in the appropriate manner. This legislation is narrow but is progressive. It takes us two steps forward. The Government want to move only one step forward. I would urge them to show a spirit of generosity here this evening and move those two steps forward with us.
I am glad that this debate is taking place and that I have an opportunity of contributing to it. I welcome the initiative shown by Fianna Fáil in introducing this social legislation. This is what real reform is all about. I say, as Deputy Molony said, that I would like to see Members crossing party lines and gathering together on an initiative of such concern on which perhaps they felt the time lapse had been too great, to bring in together a Private Members' Bill or perhaps introduce some other measure to do what we are seeking to do. Certain archaic institutional traditions, dependent domicile being one, have up to now excluded us from this type of participation and co-operation, and I hope to see future initiatives of this sort leading to debate. Deputy Molony was quite right in acknowledging that within his various ministries Deputy Haughey introduced certain social legislation which had tremendously advantageous implications. The Deputy mentioned the Succession Act, and no woman in Ireland would not acknowledge the implications of that.
The report of the Commission on the Status of Women was initiated and that became the bible of women fighting for womens' rights. Here I can criticise all sides of the House because I spent more years fighting outside the House than I have been in the House about long delays. I was amazed to hear certain speakers in this debate describing this as a small, very minor Bill which will take only three hours to debate. It should have been introduced long ago. I have been lobbying women outside this House and sometimes inside it since 1973 and I ask them where in God's name the time went, or why this very minor Bill was not introduced before now, considering the archaic situation which had the deepest implications at the must fundamental level for women's individual freedom and responsibility. I deplore that delay.
I welcome this Bill for the reasons I am going to give, but I cannot support it. I welcome also the Government Bill which will be coming in. With constructive co-operation on both sides of the House we will have social legislation. I am concerned, as I know the chairwoman of the Joint Committee on Women's Rights opposite me is, that so much still remains to be done in reform regarding women and their rights.
This Bill has broad implications for a minor Bill. In 1980 and 1985 at meetings of the UN Conference for the middle and end of the decade for women we could not sign the elimination of discrimination against women convention. The Women's Representative Committee in their final report in December 1978 sought action on this. This is 1985. That was seven years ago. Let us hope that tonight will see the start of the introduction of legislation which will never again take so long to implement. In 1978 the Women's Representative Committee stated that the committee regarded the common law concept of the dependency of domicile for married women as outdated and anachronistic and recommended that the married women's dependency of domicile be abolished by statute at an early date.
I take the point Deputy O'Dea made that in practical terms it might not have affected a large percentage of our population, but let me say to him that it affected every married woman or every women who wished to marry. It affected their status so fundamentally upon marriage that usually it came as a great shock and a cause of anger to women to find that such an archaic notion existed and such an archaic law was on the Statute Book. Very often it is not the number of people a law affects directly that matters but the psychological and political implications of it.
I cannot support the implication of section 11 that there could be a recognition of certain divorces and not of others; that non-nationals, or foreigners as we call them, having foreign divorces could have their divorces recognised but Irish people could not. That introduces into family law, I believe against the principles of our Constitution, a discrimination that all of us hoping and working to remove discrimination would reject totally.
That is the present position.
Yes, but I would have no hand, act or part in any legislation introduced here which would replace one discrimination by another, or introduce discrimination or differences between people. The thrust in our legislation must be to be as liberal, open and non-discriminatory as possible, and constitutionally representative of all the people living in Ireland. That is the principle which all our legislators in this House should uphold. However, unfortunately the implications of section 11 seem to negate that.
The Minister drew attention to the fact that in some way the Bill as drafted differed radically from what the Law Reform Commission had recommended. For instance, he said: "While it is, as I have indicated, modelled on the Law Reform Commission's reports, there are some important differences and there are aspects which would have to be looked at very carefully." He went on to say that the Bill would apply to decrees of nullity in marriage in the same way that it would apply to decrees of divorce. That shows there are tremendous differences between considerations that arise from the annulling of a marriage and a divorce. I agree with that. The whole area of nullity and the grounds for nullity are quite different at present from those of divorce. We would get into a quagmire and a minefield if we started to bring in any legislation that would align those two together, and in the debate and the legislation we must not add further confusion.
The Women's Representative Committee recommended consideration of State nullity as a concept rather than the introduction of divorce. Several other groups studies this also and made recommendations on it. That committee after a lot of research regarded it as a very different legal dissolution. Their final recommendation was that we should have a system of State nullity and of divorce.
In all the studies I have been involved in in regard to the two subjects there has been a belief, based on legal expertise, that we should not confuse the two because the grounds for them and the implications afterwards are quite different. The Bill is also silent on the question of taxation laws. I am sure Deputy O'Dea is aware of the complications of our tax laws. I would hesitate to support anything that would add further to these complications. The Government's Bill, which took a long time to prepare because Ministers were trying to avoid the difficulties I have referred to, is a good one in the interim. I presume that following the debate on the whole area in regard to marriage breakdown there will be a decision as to whether we should have a referendum on the divorce issue. The Minister has said that the Government think that the wisest course is to limit the changes to be made in the rules and recognition of foreign divorces to as minor changes as possible until we have settled the whole problem regarding marriage breakdown, difficulties in regard to nullity and Church and State recognition of marriages.
We must be careful to ensure that by removing the domicile dimension of the legislation we do not create problems in regard to dealing with the entire area of divorce here. The question of nullity could be debated in conjunction with the divorce issue or after it.
I welcome the contribution of Members to debates on social legislation and I am encouraged when I hear Deputies decry the fact that legislation that discriminates against women has been so long on the Statute Book. I always wish that that type of urgency and awareness was prevalent in all our planning in regard to legislation. There is a belief among women outside the House that a lot of lip service is paid to the position of women and the inequities they still suffer from but there is little action. When a minor piece of legislation is introduced some people feel that it is sufficient to keep women happy for another year or two. When one is talking about such legislation one gets the impression that it is considered trivial, another sop to be thrown out to keep women quiet and that it is not part of the great national or international order. Such reforming measures do not get the same priority as other legislation.
Anything that discriminates against women, that takes away from their freedom, their development and the independence of the person has an effect on men. When we have introduced all the legislation necessary to remove inequalities against women, men will feel liberated. They will be able to stand dignified having helped to bring this about. Far too many people feel that this should be left to women's groups to lobby. Some hold the view that such discrimination does not affect men's lives but I would like to get across to Members, male and female, that nothing affects women in isolation, it reflects on men also. As a Legislature, as constitutionalists and democratic parliamentarians I do not think we can feel anything but embarrassed and ashamed because in regard to various issues of discrimination we cannot sign and ratify the UN declaration for the elimination of all discrimination against women. We have a high opinion of ourselves internationally and we have done a lot to deserve it. Our standing in the UN is high and I want that to continue but I want the men to realise that there is no way we can stand high in the UN when half of our population, women, are so severely discriminated against to such an extent that we cannot sign the UN declaration. My plea tonight is to let us continue with the reforms that are needed.
No side of the House should feel they have a monopoly on reform. I want all Members to be proud that the House stands for reform. I hope we will work together for reform and that by the end of 1989 we will have achieved our target. Ten years ago women believed that there was a bright world ahead of them. It was accepted that the necessary reforms would not be implemented within one year but we thought they might be attained within ten years. It is sad to report that we have a long way to go. I do not want to enter the next decade without legislators being able to say that they have worked hard to bring about reform and that Ireland will be able to sign the UN declaration. More than that, I trust that the women of this country will have understood that not alone have they brought about a change in the laws — which is certainly their responsibility — but that the eagerness and will with which they have brought that about assures them of not being second-class citizens or a minority interest as they are described, and that they can stand as equals, with exactly the same rights and opportunities as men.
I would like to think that by the next decade we will have in this House more women representatives not alone contributing to debate but helping to bring about the kind of society that we all became politicians to bring about. I do not think that will be achieved without the full and equal participation of women. I would remind the male Members of this Chamber that I would like them to believe that also and to act upon it.
It is something of a relief to those of us on this side of the House than the atmosphere in which this measure is being discussed this evening is infinitely better than it was yesterday evening. To those Deputies who have contributed to the change, I express my appreciation for their approach. I understand that the Government parties intend to vote down this Bill of ours. That is their decision. I regret it but they will have to answer for it to a fairly wide constituency of people who welcome this Bill and look forward to its enactment. The Government have put themselves in a very odd position by their attitude to the legislation. The Minister for Justice could be summarised as saying that he approved of what the Bill was trying to achieve but nevertheless was going to vote against it. That is not a very defensible position. If he approved of what the Bill was trying to achieve then he should have directed his efforts to ensuring that the Bill did achieve what it was intended to achieve and not just vote it down.
Some of the younger Deputies might not know this, but it has been almost the general practice in this House that when a party in Opposition, or an individual, brings forward legislation which the Government of the day have to deal with, the approach has been that the Government would say to that party or individual; "We approve of what you are trying to do, but your Bill is inadequate. If you withdraw it we will bring in a comprehensive measure which will deal with this whole situation satisfactorily". That has been the practice invariably since I came into this House, but here we have a different situation. We have a Government which say to an Opposition; "We like what you are trying to do in your Bill, but you are trying to go too far. We are going to vote down your Bill and bring in in its place a much narrower, more limited, more restrictive measure". In my experience that is the first time that that has ever happened in this House. The usual approach is that the Government say; "We have all the resources at our command, the parliamentary draftsmen, Government Departments, the Attorney General and we will bring in a Bill which will cover the whole area and deal with all the matters that your measure is not able to cope with".
The Government must admit that their measure was rushed out and it is very narrow and restrictive. It does not make any attempt to deal with the issue with which we are attempting to come to grips. Any objective view of what has happened here over this legislation must be that the Government have reacted in a mean and petty fashion to an initiative which we took in all good faith. They simply did not want this side of the House, the Fianna Fáil Party, to get any credit for even this relatively unambitious and minor reform. The gist of what Deputy Barnes said was that any reform is a major thing and I agree with that. However, this legislation that we are attempting to have enacted could not be regarded as a major law reform by any standards. It is relatively straightforward measure to deal with a fairly restricted area of the law.
This Government parade themselves as favouring a bigger role for this Oireachtas. We have heard this countless times. They want to make the House more relevant to today, to the circumstances of the time and to involve to a greater degree the general body of Deputies, as distinct from the Government and the Executive, in the whole process of law-making, in particular. The Minister for Industry, Trade, Commerce and Tourism is promoting a proposal now which is intended to ensure that there will be many more Private Members' Bills brought before this House. I think that the Minister is sincere in what he is attempting. I do not agree with the way he is going about it, but he is definitely making an effort to have that facility available to Deputies who are not members of the Government to bring in legislation and have it tested before the House.
That is the Government's attitude on the one hand. On the other hand, when we bring in this measure, instead of assisting and helping us and trying to see it through, they decide to vote it down and bring in a much more restrictive measure of their own. No matter what way you look at it, that does place the Government in a very dubious position which it is going to be very difficult for them to defend.
We were not out to upstage the Government on this issue. I want to make it absolutely clear that that was not in any way part of our design. As Deputy Barnes has kindly acknowledged, I have always had a great interest in law reform and have pursued that interest whenever I had the opportunity to do so. I would remind the House that as far back as 1960 I published a White Paper, as Minister for Justice, which was entitled "Women and the Law". Deputy Barnes was talking about 1978 but that was 1960. I think that our credentials in that regard are reasonably good. The women in Fianna Fáil today, particularly our Women's Committee of the National Executive, were very anxious and eager for positive action by our parliamentary party in the area of law reform, and particularly where the status of women was concerned. It was in response to their insistence that we embarked on this legislation. We have no other objective or motive. We did not want to upstage or pre-empt the Government in any way. There are other ways we can do that if we want to.
We have a situation where there was blatant discrimination against women in one particular area and the remedy was ready to hand. The Law Reform Commission, a very expert and experienced body entrusted by this House with the job of law reform, particularly in this complicated and complex area, had studied this problem, gone into it in depth, produced papers and had finally come up with suggestions. There was a proposal waiting to be implemented by somebody. On the other hand, the situation of discrimination was blatant and identifiable and readily curable. Surely that combination of circumstances dictated simply one thing — that we as an Opposition party should proceed with this legislation. The discrimination was obnoxious, obvious and identifiable. It was there for a long time and, in the words of different experts and judges, it was a relic of the past which should long ago have been done away with.
We were clearly motivated by all those circumstances to take this initiative. We went ahead and genuinely did not anticipate the Government's reaction of panic. They were distressed lest we might get some credit on these Opposition benches for something positive and they rushed out their own legislation. I find that distressing but I will not make a party political point of it. It is something which must be mentioned if only to be rectified. I know there are on the benches opposite many Deputies who want law reform, who would like to see it progress on some sort of non-party basis and who are not prepared to wait for the Government, with all the pressures there are on Government, to bring forward reform. Surely this was an occasion when we could have made a good constructive, all-party, non-partisan beginning. I regret very much that it has not worked out that way and that our Bill is to be voted down in few minutes' time. I hope it will not happen again and, if somebody on this side of the House or on the Government backbenches takes an initiative of this kind, it will meet with a different reception by the Government. I hope that the Government will have second thoughts about it.
I am not at all impressed by the arguments put forward by anybody on the opposite side of the House about this Bill. The objections to it are contrived and manufactured. The argument about taxation is meaningless. We are not doing anything major about taxation or changing any significant aspect of it. We are purporting to substitute one sensible, practical, ascertainable test as distinct from a complex, unreal, unrealistic test. No matter what taxation codes there are of a national or international kind, that cannot but be an advantage. I was astonished to hear the Minister advance in support of his argument some instance where foreign commercial gentlemen were living in London whose taxation position would have been adversely affected if the British had changed their concept of domicile. The Minister advanced that to us as an argument against changing the concept of domicile. The argument does not stand up; it is not real.
Nor, with all due respect to Deputy Barnes, does the argument about nullity stand up. We are perfectly prepared to put down one simple amendment to section 3, the definition section, to delete nullity. Deputy Barnes's problem would then disappear, if she has a problem. I do not think it is a problem because we are doing nothing about nullity, no more than we are doing anything about divorce. We are only providing a new criterion. No matter how complicated nullity is and no matter what implications there are about nullity, it would not be changed in any way by this Bill. If this Bill were passed, all we would have would be a new basis for deciding which international set of laws would apply in all nullity and divorce cases.
I am not very impressed by any of the arguments put forward. The one argument which would over-rule and overwhelm all others is the one put forward effectively by this side of the House, particularly by Deputy O'Dea, concerning the absurdity of the concept of domicile. If there was no attempt to improve the status of women in so far as discrimination is concerned and if we were doing nothing else but getting rid of this ridiculous and archaic concept of domicile, this Bill would be well worth while.
Deputy Barnes talked about lip service and hoped that this Bill would not be treated as something which was a little gesture for the time being about the status of women while other major improvements would be put on the long finger. I do not think it can be seen like that. It is certainly not put forward by us in that way. Here is a situation where there is blatant, identifiable and rectifiable discrimination. Why not get rid of it while waiting for major reforms in other areas? I would have hoped that Deputy Barnes might have used her influence, since the Fine Gael Party regard her's as an important voice in women's affairs, to get the Government to change their mind, let the Bill go through Second Stage and look at it on Committee Stage. If our Bill is lip service, surely a much more limited and restricted Government Bill is far more in the realm of lip service.
We were quite prepared to take Second Stage last night and Committee Stage tonight and have it passed tonight or next week, if necessary. If that had happened this piece of discrimination would be gone. As it is, the Government have brought forward their Bill and our Bill is about to fall. I do not know when the Government Bill will come before us again. It will be put back until the Christmas recess and then we will have the budget and financial business. Our Bill could have been put through now and this discrimination against women could have been ended. Surely the sooner this is done the better. I do not think it is worth the Government's while postponing the implementation of what we both have in mind just to deprive us of whatever kudos there are in this, which are not all that much.
We were not attempting anything radical or revolutionary. We just saw a piece of blatant discrimination regarding which the Law Reform Commission with all their constitutional knowledge and experience, pointed the way forward. The remedy was to hand and we sought to avail of it to take one admittedly small but nevertheless significant step towards the objectives which we have set ourselves and to which I have always set myself, that I will never regard my job as a legislator to be finished until such time as a woman and a man are totally, finally and completely equal before the law, because anything else is an absurdity and an anachronism. This would have been one progressive and constructive step towards that objective.
I bitterly regret the Government's attitude towards this and that they are now going to vote it down. They are making a mistake but I hope it will be the last mistake in this area and that the next time we bring forward something of this nature we will be met with a different and more constructive attitude.
Question put.
The Dáil divided: Tá, 58; Níl, 66.
Tá
- Ahern, Michael.
- Andrews, David.
- Aylward, Liam.
- Barrett, Michael.
- Blaney, Neil Terence.
- Brady, Gerard.
- Brennan, Mattie.
- Brennan, Paudge.
- Brennan, Séamus.
- Browne, John.
- Burke, Raphael P.
- Byrne, Hugh.
- Byrne, Seán.
- Calleary, Seán.
- Collins, Gerard.
- Conaghan, Hugh.
- Connolly, Ger.
- Coughlan, Cathal Seán.
- Cowen, Brian.
- Daly, Brendan.
- Fahey, Francis.
- Fahey, Jackie.
- Faulkner, Pádraig.
- Fitzgerald, Liam Joseph.
- Foley, Denis.
- Gallagher, Denis.
- Gallagher, Pat Cope.
- Geoghegan-Quinn, Máire.
- Harney, Mary.
- Haughey, Charles J.
- Hilliard, Colm.
- Hyland, Liam.
- Kirk, Séamus.
- Kitt, Michael.
- Lenihan, Brian.
- Leonard, Jimmy.
- Leonard, Tom.
- Leyden, Terry.
- McCarthy, Seán.
- McEllistrim, Tom.
- Morley, P. J.
- Moynihan, Donal.
- Nolan, M. J.
- Noonan, Michael J. (Limerick West)
- O'Dea, William.
- O'Hanlon, Rory.
- O'Keeffe, Edmond.
- O'Kennedy, Michael.
- O'Leary, John.
- O'Rourke, Mary.
- Power, Paddy.
- Reynolds, Albert.
- Treacy, Noel.
- Wallace, Dan.
- Walsh, Joe.
- Walsh, Seán.
- Wilson, John P.
- Wyse, Pearse.
Níl
- Allen, Bernard.
- Barnes, Monica.
- Barry, Myra.
- Begley, Michael.
- Bell, Michael.
- Bermingham, Joe.
- Birmingham, George Martin.
- Bruton, Richard.
- Burke, Liam.
- Carey, Donal.
- Conlon, John F.
- Connaughton, Paul.
- Coogan, Fintan.
- Cooney, Patrick Mark.
- Cosgrave, Liam T.
- Cosgrave, Michael Joe.
- Coveney, Hugh.
- Creed, Donal.
- Hegarty, Paddy.
- Hussey, Gemma.
- Keating, Michael.
- Kelly, John.
- L'Estrange, Gerry.
- McGahon, Brendan.
- McGinley, Dinny.
- McLoughlin, Frank.
- Manning, Maurice.
- Mitchell, Gay.
- Mitchell, Jim.
- Molony, David.
- Moynihan, Michael.
- Naughten, Liam.
- Nealon, Ted.
- Crotty, Kieran.
- Crowley, Frank.
- D'Arcy, Michael.
- Deasy, Martin Austin.
- Desmond, Eileen.
- Donnellan, John.
- Dowling, Dick.
- Doyle, Avril.
- Doyle, Joe.
- Dukes, Alan.
- Durkan, Bernard J.
- Enright, Thomas W.
- Farrelly, John V.
- FitzGerald, Garret.
- Flaherty, Mary.
- Flanagan, Oliver J.
- Glenn, Alice.
- Harte, Patrick D.
- O'Brien, Willie.
- O'Leary, Michael.
- O'Sullivan, Toddy.
- O'Toole, Paddy.
- Owen, Nora.
- Pattison, Séamus.
- Prendergast, Frank.
- Ryan, John.
- Shatter, Alan.
- Sheehan, Patrick Joseph.
- Skelly, Liam.
- Spring, Dick.
- Taylor-Quinn, Madeline.
- Timmins, Godfrey.
- Yates, Ivan.
Tellers: Tá, Deputies Barrett(Dublin North-West) and Browne: Níl, Deputies G. Birmingham and McLoughlin.
Question declared lost.