Dáil Éireann díospóireacht -
Thursday, 17 Nov 1988

Vol. 384 No. 4

Family Law Bill, 1987 [Seanad]: Second and Subsequent Stages.

Minister for Justice (Mr. Collins)

I move: "That the Bill be now read a Second Time."

This is a short Bill, the purpose of which is to abolish the ancient action for restitution of conjugal rights. That action is available at common law to a spouse who has been deserted by the other spouse, in order to enforce the matrimonial duty to cohabit. Jurisdiction to hear petitions is vested in the High Court. Failure to comply with the order of the court renders the offender liable to committal for contempt. The action has fallen into disuse in this country and, in a report published in 1983, the Law Reform Commission recommended that it be abolished.

It appears that the action, when it was being used, was seldom taken with a view to the enforcement of the decree sought, or even in the hope that the proceedings themselves would bring about a change of attitude by the spouse against whom they were directed. Usually it was applied for as a means of establishing desertion in order, for instance, to assist or resist, as the case might be, an application for maintenance. In other words, the action was little more than a legal ploy. In a 1922 Irish case, the judge is recorded as saying that such decrees were sought in the expectation that they would not be obeyed, so as to lay the foundation for other proceedings. He said that penalties for failure to comply with an order were rarely if ever sought.

As far as maintenance is concerned, there is no longer any need for a spouse to prove desertion on the part of the other spouse in order to obtain a maintenance order; the 1976 maintenance legislation saw to that. In my view, there is no other possible justification either for continuing to have this remedy available. The very notion that a court should order, or even be asked to order, that a person should live with his or her spouse against that person's will is one that I feel is an affront to present day concepts of personal liberty. This action is clearly an anachronism.

I am aware that the action is widely perceived as being particularly offensive to women, and as representing a continuation of the concept of the wife as chattel. It is interesting — and indeed ironic — to note, however, that the limited statistics available indicate that this action was taken by wives and husbands in more or less equal measures.

This short Bill represents a further measure of progress in the development of this society's attitude towards relationships between spouses. The Oireachtas has in the last few years made considerable progress in the area of family law reform. We have enacted such significant measures as the Domicile and Recognition of Foreign Divorces Act, 1986, the Irish Nationality and Citizenship Act, 1986, and the Status of Children Act, 1987. Each of these statutes has, in its own way, contributed towards a change in the climate of Irish law in its treatment of relationships between men and women. These changes reflect the evolution of our society, which now places more emphasis on respect for individual rights, and the equality of those rights, as between the sexes.

These statutes are measures in which the Oireachtas as a whole can take pride. They were all given support from every side of this House, and indeed some of them, although originating with one party, were brought to fruition under the aegis of another. This consensus approach to the reform of the law in this important area is one which I welcome, and I am confident that this House will take that approach to the Bill now before us.

On that basis, I commend this Bill to the House.

Mr. Flanagan

I am glad the Minister has decided to proceed with this rather simple matter to abolish proceedings for the restitution of conjugal rights. All parties, and I would expect all Members of the House to agree that this is a pretty straightforward Bill which will not give rise to any serious argument or matters of serious contention. The remedy under the old common law action for restitution of conjugal rights has not been used for quite some time and must now be regarded as being obsolete in the extreme.

On 7 November 1983 the president of the Law Reform Commission, the Honourable Mr. Justice Brian Walsh, published Law Reform Commission Report No. 6, which advocated change maintaining that it was hardly relevant to have a law on the Statute Book compelling two people to live together if they are not on good terms. The Law Reform Commission weighed up the pros and cons and the report is there for all to see. I do not intend going into the contents of that report in detail, but I believe the ideal of bringing a married couple who are experiencing difficulty in their marriage before a court and requesting a court decree that they live together, must surely have had a result of advocating the existence and fostering of unhappy marriages.

It is somewhat ludicrous by today's standards to reflect on sections 1 and 3 of the Ecclesiastical Courts Act, 1813, which stated that where a spouse failed to comply with a decree for restitution of conjugal rights he or she may be committed to prison for a period not exceeding six months.

By enacting the Family Law Bill, 1987, we are following the abolition of similar actions in other jurisdictions. It was submitted in 1969 in the English Law Commission Working Paper on the subject that:

It is intolerable interference with the freedom of individuals for the court to order adults to live together and it is hardly an appropriate method of attempting to effect a reconciliation.

That commission concluded that the law was being brought into disrepute by the existence of such an action for the restitution of conjugal rights. The Irish Law Commission in their wisdom decided similarly that it is inappropriate and ineffective in the latter part of the 20th century to have such a law on our Statute Book.

A point underlying the difficulties inherent in such an action as it presently stands was touched on by the Law Reform Commission in so far as there was a feeling that there may have been an infringement of rights of the citizen under Bunreacht na hÉireann. These rights included the liberty of the person, freedom of association, the right to travel and earn a livelihood and the right to privacy.

The Law Reform Commission report, however, goes one step further than the Minister is going now, and I quote from that report:

We consider that more support for reconciliation procedures should be made available by the State through financial subsidy of existing marriage guidance and conciliation agencies, as well as through the creation of new conciliation services, by way of pilot projects if necessary.

It is unfortunate that there has been very little in terms of progress in this area since the publication of the report in 1983 and I would again urge the Minister and the Government to act in a positive manner on the question of mediation and support services available to people who are in difficulty in their married lives. We must have a system wherein there is a support structure available to deal with existing problems in society.

I will give an example of State institutions not having a compassionate attitude towards people who may be in difficulties with their marriages. Not long ago, in my own constituency, unhappy differences arose between a couple and the wife sought — and was granted — an order for maintenance in the District Court notwithstanding the fact that she did not seek to have her husband barred from the family home. In December 1987 she was granted the sum of £20 per week out of her husband's salary to look after her eight children. In May of this year, not having paid one penny in maintenance, the wife discovered that the husband had emigrated to Britain. An application for deserted wife's benefit was made, but three months later, the unfortunate spouse in question received a fancy worded circular from the Department of Social Welfare which I understand is policy in such cases, saying that her application would not be further considered until she was able to produce a report on the whereabouts of her husband and to give reasons for not getting maintenance from him even though he had left the jurisdiction and had refused an order of the court to pay maintenance some six months previously. That is one of thousands of examples throughout the country at present showing the heartless attitude of State institutions when it comes to dealing with matters of a family law nature.

It is timely, when dealing with the abolition of actions as outlined in the Bill, to advocate a structure of mediation services designed to allow the parties to resolve their difficulties, where possible, by themselves. This can be a very slow and traumatic process and I draw the attention of the House to a recommendation of the Joint Committee on Marriage Breakdown that consideration be given to three basic means by which mediation can be offered — an independent mediation service, mediation through court welfare systems and mediation by a judge or somebody in a quasi-judicial capacity. Having considered these three possible structures, the committee formed the view that an independent mediation service was by far the most attractive. Obviously — I am sure the Minister will agree — the question of finance is paramount and I would be the first to accept that the setting up of such a mediation scheme could prove an expensive undertaking. However, we must look at the fact that there may be considerable and significant savings in the legal aid area brought about by the resultant fact that there would be fewer court applications if we had the proper mediation services and structures available.

We should give careful consideration to early reorganisation of the family court structure. I have spoken on this several times in the past, having had firsthand knowledge in District Court family law proceedings throughout rural areas. We should address the present objectionable scenario at the earliest opportunity. We are dealing daily with family law cases which are held on the same day and at the same time as criminal matters, road traffic cases, civil suits and debt collection proceedings. By having these cases under an umbrella of formality in the District Court we are losing sight of the primary aim when dealing with marital problems, which should be one of offering assistance to the parties to reach a resolution of their difficulties, if possible by agreement. The approach of a court in the family law area must, at all times, aim to minimise the damaging effects of such court proceedings on the husband, the wife and, more importantly, on the children.

I know it is not in the Minister's area but the Department of Justice should consider taking responsibility for courthouses throughout the length and breadth of the country. Courthouses dealing with family law cases have inadequate consultation rooms, inadequate rooms for hearing cases and inadequate toilet facilities, which all add to the adversarial nature of a family law case. The ultimate insensitivity towards the couple can be seen by the fact that outside many family law courtrooms both the applicants and the respondents have to stand side by side, literally within feet of one another, with their legal advisers, twiddling their respective thumbs and waiting to be brought before a judge. There should be a consultation room where parties could perhaps have a cigarette in privacy prior to the hearing of this most traumatic matter.

The family law court structure must be segregated from other courts. Family courts should sit at different locations throughout the country hearing family matters. Court hearings must be far less formal than at present. Indeed, some district justices have provided an informal court system, off the Bench, where the parties have an opportunity of relaxing without recourse to the legal jargon of a public court. District Court and Circuit Court judges should adopt——

An Ceann Comhairle

I hesitate to interrupt the Deputy but I must point out that this is a rather short and restrictive Bill, the subject matter of which is the restitution of conjugal rights. I ask the Deputy not to stray too far from that subject. We cannot allow a widening of the debate into the whole realm of family law.

Mr. Flanagan

I realise that. While dealing with the abolition of the restitution of conjugal rights, I am also dealing with matters which are pertinent to those rights and which we do not have an opportunity of addressing in the House at present.

The Bill is welcomed by Fine Gael but it goes a very short way down the road towards solving the many difficulties in family law matters. The Bill should pass all Stages quickly as there are no amendments from this side of the House and I do not believe that other parties have significant amendments. We must then move on to more important areas of family law. The recent decision of Mr. Justice Barr should be welcomed; it is now under appeal to the Supreme Court and I eagerly await the result. I hope we will have a further opportunity of discussing the entire family law court structure and the many problems existing in that area. While I welcome this legislation, it does little to solve the many traumatic and difficult problems facing the family as we approach the end of the 20th century.

Miss Colley

I approve of the measure proposed in the Bill but I do not approve of the Bill. It is an anachronism to have a Bill containing one very small provision brought before the House and using up the time which could be more constructively used. This provision could have been brought in with the Judicial Separation and Family Law Reform Bill which is at Report Stage. I cannot understand why this provision should not be incorporated into that Bill and debated alongside it. Perhaps it is simply my suspicious mind but I wonder at the reason for that. Perhaps it has to do with the reluctance of the Minister and the Government to allow the Judicial Separation and Family Law Reform Bill an easy passage or a passage that will be reasonably speedy. I know we are due to debate Report Stage of that Bill next week, with the agreement of the Whips. It is unfortunate that we have to come in here this week and debate a Bill which we all seem to be agreed on. It seems there is no necessity to do so.

I whole heartedly agree that the 1983 report of the Law Reform Commission should have been implemented before now. The action for restitution of conjugal rights is quite at odds with reality today. It has been unused in the last 20 years. As the Minister has rightly said, in the many years it was availed of it was used for purposes other than the apparent one for which it was provided. I see from the Law Reform Commission report that in the English report on this law before it was abolished in 1970 there were some statistics about the numbers of petitions that had been filed in the years 1965-67. It is quite interesting to see that the number of petitions was 105, from 60 husbands and 45 wives. Out of that number only 31 decrees were granted. Of the 60 husbands who had applied only 11 were granted decrees and of the 45 wives, 20 were granted decrees. It seems that re-enforces the case that very often the wife used this legal means in order to enforce maintenance, to require her husband to take proper care of herself and her family or as a prelude to applying for a separation order or, in the case of Britain, for a divorce.

As I have said, this law was abolished in England in 1970. My constituency colleague, Deputy John Kelly, very often refers in this House to the fact that we take England's left overs about 15 years later. He is about three years out in this case because it has taken us 18 years to realise that we do not need this remedy either. As the Minister has said, there has been some development in family law. Nowadays other remedies are available to spouses who have difficulties in their marriages, whether they relate to maintenance, barring orders, protection orders or even separation. There is simply no reasonable way one can force a spouse to return to the petitioning spouse's home in order to restore harmony in that marriage. It is a misnomer to look at the restitution of conjugal rights in that light. Even the history of the action proves that that was not the object of it in the majority of cases.

A very interesting point is that it is an action that was treated in the same way as contempt of court. If the order was granted and one did not comply with it the penalties were the same as those for contempt of court. I would ask what good would it do to a marriage if the respondent chose to go to prison as opposed to going home to his or her spouse. That would only re-enforce the damage that the marriage had already suffered. Even the penalties imposed for this action were quite at odds with the institution that was being dealt with, that of marriage.

In the last 15 or 20 years we have moved forward in Ireland in our thinking about marriage and what constitutes marriage. It is seen not simply as a contract relating to property but as incorporating a relationship between two people. That has to be recognised. This action is quite at odds with such a reading of this institution. Nevertheless, even though the Minister congratulates the Oireachtas on all the good work it has done, the basic work of placing on the Statute Book the proper means of obtaining separation orders has still not been done. The corner-stone of dealing with marriages that have broken down is still absent from the Statute Book.

It is quite disgraceful that we have left so many people in Ireland without the legal remedies they deserve. Thousands of people in Ireland find themselves in a legal limbo — I know that is something of a catch phrase. Those thousands of men and women are separated, cannot reach agreement with their spouses on the basis of separating amicably and simply cannot afford to go to court. Therefore the legal limbo in which they find themselves spreads beyond that relationship. It extends to the relationships that they set up with other partners. There are a maze of relationships in Ireland that are not catered for by the law and that are going to create more and more problems over the years in relation to probate and succession rights generally. It behoves this House to stop congratulating itself on the good work it has done and get down to doing the work that is absolutely necessary in order to give a cornerstone to family law.

The other aspect of family law in this country, as Deputy Flanagan has just said, is the lack of facilities and the way family law is looked on as the poor relation, almost, of the legal system, whether it be in relation to this remedy that we are abolishing today or whether it be in relation to maintenance or barring orders. The distinct impression given to any person who goes to court on any of these matters is that the system does not care for them. It regards family law as being on the same level as criminal law, property law or probate. That is not the case. We should not just have family courts but family tribunals. We should call them something different because otherwise the public will feel that they are the same as the other courts. They should be taken out of the adversarial system. There should be proper professional help such as mediation and conciliation, available to those who are experiencing difficulties so that they can avoid going to court.

An Ceann Comhairle

I must again remind the House as to the purpose of this Bill which is to abolish the old action for the restitution of conjugal rights. As and from the enactment of the Bill it will be impossible to institute proceedings for the restitution of conjugal rights. That is the main substance of this short Bill. I am concerned that there would be a widening of the debate into the whole area of family law. It simply is not appropriate on this measure and I am sure Deputies will keep that very much in mind. I am allowing some latitude but we must not stray too far from the purpose of this Bill and its subject matter. It is confined.

Miss Colley

You can rest assured my remarks are drawing to a close. I reiterate that part of the family law problems we suffer from emanate from the way they are portrayed within the court system. I believe we are on the point of restoring some of the respect we should have for family law if in the near future we pass the Judicial Separation and Family Law Reform Bill. At present family law is in shambles despite some moves that have been made on the periphery, and I regard this Bill before us today as one of those, but it is simply tinkering with some of the real problems. I impress on the Minister the need to examine seriously the question of the difficulties facing thousands of people, difficulties that are going to be magnified in the next 15 or 20 years unless legal and realistic remedies are laid down properly.

Finally, I would like to assure the House that I am not tabling amendments to this Bill and that we will be agreeing to its passing.

Mr. McCartan

On behalf of The Workers' Party I wish to indicate briefly that we support the proposal before the Dáil today to abolish action for restitution of conjugal rights. However, a number of points must be raised in respect of this Bill. The first is to deal with the suggestion that this is "by the way" legislation, that we are just tidying up and getting out of the way an action that really has no relevance to modern conditions. I think something is being lost here. The action is an action that compels one spouse to live with the other so long as a valid marriage subsists. In the context of our law where it is still legally right and possible for the male to rape the woman in marriage this action has a degree of sinister proportion to it. Because of its existence a husband aggrieved could have insisted or sought to get the courts' and our laws assistance in forcing a woman to live at home. In turn then, because of the antiquated nature of our law in the area of rape, forced sexual acts could be imposed on her and nothing in law could be done to prevent that. This Bill certainly has a sinister context in current matrimonial law and it is only right and proper that such action be abolished forthwith this morning.

The unforgiveable thing in all this is the delay that has surrounded the introduction of this legislation. Under the action I have mentioned the law requires a spouse to cohabit and it follows that there is an entitlement to apply to court to commit the defaulting spouse to prison for failing to do so.

It is worth looking at the history of the legislation elsewhere. In 1884 under the Matrimonial Causes Act in Britain they managed to abolish the right of commital there and it is interesting to read and consider the parliamentary debates of the day as to why that legislation was not extended to cover this jurisdiction by a legislature that had responsibility for both jurisdictions at the time. It is interesting to realise the role that even then the Catholic Church and Church interests sought to impose on debate and ensure there would be no interference with their ecclesiastical control of the development of marriage law in this country so far back. That is the main, indeed, the single reason the parliament of Westminster of the day did not extend the legislation even in that small way. I think that helps us to understand why it has taken us so long to bring forward this legislation. The report was published in 1983. It is well worth asking the previous Government in particular, with their constitutionally crusading commitments, how they ignored the report of the Law Reform Commission in 1983 and why it was only in July of 1987 that this two line piece of legislation could find its way onto the table of the Oireachtas business. All of this was fully examined and ventilated in the very comprehensive report of the English Law Commission under the title Family Law: Restitution of Conjugal Rights as unequivocally they called for the abolition of the action, and that was done within the following year, 1970, under the Matrimonial Proceedings and Property Act. The point made by Deputy Colley is reflected even in the title of that legislation because they linked the abolition of these proceedings to other areas of law particularly with regard to matrimonial property and updating of the law there. At that stage in Britain, even though some actions were being taken, it was clear that the action was being used as a lever in wider actions relating to maintenance, alimony and other property issues. Therefore, we have nothing to congratulate ourselves on today. Perhaps we should take a bow and solidly kick one another in the backside as we do it. There is nothing to be applauded in the fact that we find ourselves here this morning so long afterwards in the context of such potentially pernicious laws, moving to take them off the Statute Book.

The Minister said: "The Oireachtas has in the last few years made considerable progress in the area of family law reform." He instanced in the course of his speech three separate pieces of legislation. One recognises foreign divorces, or more particularly, got rid of an equally antiquated and ridiculous legal principle, that of the domicile of dependency. The wife's domicile was dictated by that of the husband irrespective of where he lived. What an achievement. In 1986 we managed to confront and dispose of a fuedal concept. The Irish Nationality and Citizenship Act dealt, for the first time, with the ridiculous inequality that existed where if a foreign national married an Irish woman she had no rights accruing whereas if a foreign woman married a male citizen she was automatically entitled to Irish citizenship. That has been addressed in part, very unsatisfactorily, and in any event the whole area of nationality and citizenship entitlement is a morass of greyness that does no credit to the legislators or to the Minister in the House today.

The Minister mentioned the Status of Children Act, 1987 under which we managed to address the thorny question of calling children born outside wedlock illegitimate. This is the litany the Minister presents to us as making considerable progress. We managed, in three small ways, to drag oursleves out of the feudal ages with regard to matrimonial law and address what was screaming out to this Oireachtas for decades on end for reform. We did it, but is it not too little too late?

It is in the context of progress in the area of family law that I come to the disgraceful behaviour of Fianna Fáil in the deliberations with regard to the judicial separation legislation that has been so begrudgingly and tortuously dealt with over the last number of months in special committee and which will be dealt with on Report Stage here in the very near future.

An Ceann Comhairle

The Deputy is straying quite considerably from the purpose of this measure which deals specifically with the restitution of conjugal rights.

Mr. McCartan

I am merely taking up a point made by the Minister.

An Ceann Comhairle

A fleeting reference is in order; there is hardly need for elaboration.

Mr. McCartan

In passing from it then, I would say that we will get a good measure of the so-called commitment of Fianna Fáil to law reform when we sit down on Report Stage and have to deal with the obstruction tactics of the Minister and his party in dealing with the final stages of that Bill. I will watch very carefully how they seek to do the Bill in when it arrives in the forum of Senator Hanafin in the Upper House.

An Ceann Comhairle

There should be no reference to Members of the Upper House.

Mr. Collins

That is grossly unfair and out of order. Senator Hanafin is entitled to make his views known on any legislation.

Mr. McCartan

Senator Hanafin knows my feelings on his input into family law reform.

An Ceann Comhairle

This is quite irrelevant.

Mr. Collins

Senator Hanafin has as much right to make his views known as the Deputy has.

Mr. McCartan

He is also liable to be commented upon and criticised particularly in this House.

An Ceann Comhairle

Let us get back to the Bill before us here this morning.

Mr. McCartan

On the report of the Law Reform Commission of 1983, we are told that the Government are acting constructively and innovatively; but there is another half of that report that is being completely ignored. What about the other very strong recommendations dealing with jactitation of marriage and the rights of spouses to confront people making false claims of marriage? Why was that not added as another section in this massive legislation on family law reform?

The Minister has gone a little beyond himself in heralding this legislation as a significant advance. It is certainly welcome but it is a very small gesture much too late. It does not tell the full story when one considers the role of Fianna Fáil in family law over the last number of years. They are the party that succeeded in ensuring that we do not have divorce and who, when we came to deal with the absence of that right, obstructed the progress of the current judicial legislation before the House.

An Ceann Comhairle

Deputy Monica Barnes. Does Deputy Mooney wish to intervene? I would certainly wish to call her if she does, I am sorry Deputy Barnes. I did not observe Deputy Mooney rising.

Mrs. Barnes

I will certainly defer to my colleague.

Miss Mooney

The passing of this Bill through the Oireachtas is the closing of one more chapter in the long fight for equality of the sexes. Although the Bill is short and I cannot see any opposition so far to its introduction from Opposition Members, I feel it is worth while to comment and reflect on its passing.

We are all familiar with the fact that a great number of marriages here simply do not work. We have all come across sad situations among our relations and friends and seen the pain and anguish they suffer when, for one reason or another, their marriage disintegrates. In this day and age people are quite open about marriage break-up, but in the last generation people felt it was something to be ashamed of. So, in many instances they covered up the fact that their marriage was in trouble, resulting in miserable situations without love or suitability and, in many cases, violence and storminess.

The attitude of Irish society to separated people led to this. Women especially were looked upon as social pariahs and their standing in society diminished. This is still true to a certain extent today. Separated or deserted women were simply not wanted at any social gathering, even family affairs. The fact that they had not got their man or provider around seemed to make them a forgotten species. After all, a woman was perceived in law as a man's chattel, part of his property, unable to provide for or defend herself. This is an attitude which has not altogether disappeared. It can still be found here and there.

Under the current legislation, which this Bill will abolish, a partner in marriage can apply to the courts for restitution of conjugal rights and the court can grant it. This means the court could allow a husband to force his wife to have sexual intercourse with him against her will, even though they may have been estranged from each other for some time. In other words, the court condoned the rape of this woman by her husband and if he did not achieve what he wanted, then she would forfeit her right to financial maintenance from him or succession to his property. This was another way in which a woman was expected to prostitute herself in order to gain financial support. No wonder the practice of applying for restitution of conjugal rights has disappeared. In this day and age there would be much hue and cry if such an application were made in the court, and rightly so. Imagine the lack of understanding on the part of legislators and the Judiciary to allow such a law to be passed and acted upon. What a terrible act of dominance our predecessors allowed one person to carry out on another, and worse still if they thought that such an act could bring about a reconciliation and patch up a marriage which had already floundered: true reconciliation can only be brought about by genuine effort on the part of both partners.

I understand that sometimes women made application for restitution of conjugal rights, but I feel that the Bill was put into law in order to accommodate men. This further depicts the manner in which women were regarded both by their husbands and by the law of the land. They had no right of choice or independence. They were as much a part of the property of the husband as the land, the home, the bank account or the cattle. Indeed the cattle might have been treated better and with more respect.

Society is slow in addressing these wrongs against women and these attitudes can still be found in Ireland. Large institutions in particular are steeped in these attitudes — banks, financial institutions, employers etc. No matter how hard women try to succeed or how much they have to offer, the odds are always piled high against them.

The Church at the moment are providing a great service to married people whose marriages are in trouble, by way of counselling, and there are many successes as a result; but there is a role for the State to play in providing similar and complementary services. We have a very sympathetic and progressive Minister here, no matter what has been said here today. The passing into law of this Bill is an indication that the attitudes that I have talked about here today are also passing and will be finally laid to rest. I look forward to more good news from the Minister.

Mrs. Barnes

I am delighted to have had the opportunity of allowing Deputy Mooney to speak before me. She has, in her short speech, put into words the experience and the treatment of women and how it was endorsed by a male law. It is important to remember that changing the legislation is the first step to changing attitudes. We will not change attitudes towards women until our legislation forces people to become aware and removes the discriminations and prejudices that exist.

I am pleased Deputy McCartan is in the Chamber because I should like to refer to his speech. He was pleased that at long last we were removing some of the most discriminatory and unjust aspects of the legislation as it relates to women but I should like to point out to him that it was not just a happy coincidence that we got the legal reforms. Changes in the laws relating to women and children came about following extensive lobbying by women and the women's movement. That should be recognised. Until women organised themselves to reject discriminations and put pressure on the legislators to remove them there had not been any attempt to do so.

I do not wish to delay the passage of the Bill which represents a small step forward in the area of family law reform.

Support services must be part and parcel of the legislation so as to ensure that the provisions of the Bill will be implemented. I should like to congratulate the Law Reform Commission on the work they have done over the years. It is lamentable that the reforms suggested by that group in 1970 are being introduced in 1988. Legislation in that area is so outdated that it merits the description of being mediaeval. It is unfortunate that more changes have not been made particularly in view of the fact that they would not be opposed in the House.

The Minister said that the action for restitution of conjugal rights usually was applied for as a means of establishing desertion in order, for instance, to assist or resist, as the case might be, an application for maintenance. Many ploys were used in regard to maintenance, including the use of discriminatory legislation. That highlights the need to look at the difficulties women experience when applying for maintenance. Women and their children run the risk of not obtaining maintenance and may be left in dire circumstances. In a report on social welfare the Joint Committee on Women's Rights some years ago recommended that once a deserted wife established her need for maintenance the State should pursue the husband for maintenance. That report recommended that it should not be left to the deserted spouse, who would have enough problems to cope with, to track down a husband who deserted her. The Bill before us is about humanising our law and that is welcome.

I welcome any legislation that deals with the question of individual rights, human rights within marriage and other legal contracts. As legislators we should look at the unnecessary, humiliating and delaying tactics that deserted spouses are put through when attempting to get maintenance. The fact that such ploys are used is an indication of what remains to be done in that area. The Minister was correct when he said that the old legislation was particularly offensive to women because it continued the concept of the wife as chattel. It took many years of lobbying to remove another extraordinary and unacceptable piece of legislation from the Statute Book, the tort of criminal conversation. Up to 1981 a husband could sue another man for enticing his wife away and obtain compensation for the loss of her services, including her sexual services. That was a particularly humiliating provision and women were surprised that it took so long to remove it from the Statute Book.

The Minister's presence gives us the opportunity to stress the urgency of bringing forward legislation dealing with rape. As other Members pointed out, the restitution of conjugal rights could lead to forced sexual abuse of a wife. Until legislation in the area of rape is reformed wives will run the risk of being raped with impunity by a husband. Deputy McCartan stated that as long as the old provision remained on the Statute Book that could happen but I am sure, and other Members are aware, that even in a case of separation, because the State recognises the woman as the wife of the husband that separated husband can use that violence against his wife. Those who work at the Rape Crisis Centre and Women's Aid have told me that a separated husband can use that violence against his wife without the fear of prosecution. If he beats her up he can be prosecuted but if he rapes her he cannot. All fair-minded people will reject that type of horrid and heinous violence against women. We must ensure that that law is reformed. On the Order of Business this morning we were told that amending legislation would be introduced in the next session but, because of the amount of violence perpetrated against women within marriage and against those who are separated, I urge the Minister to put that item at the top of the agenda for the next session.

I wait with great impatience the introduction of the Bill dealing with the property of married couples. I hope it will deal with the protection of the spouse in the home. I am referring to the property of couples who are not separated. If we support the institution of marriage we must not leave those who elect to stay married in a vulnerable position in regard to judgment mortgages and debt collection. The possessions of a wife may be taken by a sheriff enforcing a court judgment and we should deal with that as a matter of urgency. The Minister concluded his speech by saying:

This consensus approach to the reform of the law in this important area is one which I welcome, and I am confident that this House will take that approach to the Bill now before us.

I appeal to the Minister, and to Fianna Fáil, to extend that consensus approach to the legislation that is listed for debate next week, that dealing with judicial separation.

Minister for Justice (Mr. Collins)

I thank Deputy Flanagan and Deputy Barnes, as spokespersons for their party, for the very generous welcome they gave the Bill. I thank Deputy Colley, as spokesperson for her party, for the qualified welcome she gave to the Bill and say to her that her admitted suspicious mind can be put at rest as there is nothing in the Bill to be suspicious about. I should like to say to Deputy McCartan that I accept the very qualified welcome he gave the Bill and I assure him that there is nothing sinister — if I might borrow his word — in the Bill whatsoever.

Mr. McCartan

I did not use the word.

Mr. Collins

I am afraid you did, in fact I am certain you did but the record will show. Deputy Flanagan, during the course of the contribution, referred to the role of the family mediation services in dealing with the aftermath of marriage breakdown. Such a service is operating on a pilot basis in Dublin, funded through my Department. It commenced in June 1986 and will operate for a three year period. The steering committee who oversee the running of the scheme are to report to me in due course of the operation of the pilot scheme. I will take the comments of Deputy Flanagan into account when estimating that report.

Deputy Flanagan, and others, too, spoke about the need to improve the setting for family law cases. I have indicated to the House on a number of occasions that it is clear that any developed system of family courts or tribunals could be very costly in terms of buildings and staff and that, therefore, it is out of the question in the present financial circumstances. The best that can be hoped for is minimal provision to bring about more informality in family law procedures, I have welcomed the provisions on those lines and on counselling and mediation in the Judicial Separation and Family Law Reform Bill, 1987, which is at present before the House.

The question of the institution of family courts has not been considered in any great depth. The Law Reform Commission have yet to make any detailed proposals on family type structures but their president has indicated that they intend to take up this matter in the near future.

Deputy Flanagan also raised a point about the entitlement of a deserted wife to benefit where her husband had emigrated. I will certainly convey the Deputy's viewpoint to my colleague, the Minister for Social Welfare.

In relation to courthouses generally — and I know this is outside the scope of the Bill, as the Ceann Comhairle reminded us when Deputy Flanagan was making this point — of course none of us can be happy with the conditions of the courthouses. This is a major problem throughout the length and breadth of the country and I do not think anybody denies that fact. In some instances but in very few, major improvements have been carried out at great cost. The matter is one of concern to all of us in this House, not just to the Government, but to anyone who knows anything about this area. I am trying to find ways and means of coming to grips with the problems. If I had unlimited amounts of money I would be in a position to try to get some scheme up and running straightaway.

Mr. McDowell

What about having fewer courthouses?

Mr. Collins

I am coming to that. This is a personal opinion. It is probably politically unwise to give a personal opinion but I am giving it because I believe it to be true. We could do with far fewer courthouses; a major rationalisation of courthouse locations is long overdue. If I succeed in putting together proposals in this area I will test the House for its sincerity in backing me to get those proposals through even though we may have protest groups coming to Leinster House from different communities hoping that I will change my mind when something they regard as a status symbol in their community is being taken from them. Even in my own county I would like to see the number of courthouses reduced by half and then whatever moneys are there being spent on the courthouses that would be best located to service the needs of the community. This is something we must look at very seriously. In fact, I am involved in that question and am nearing the end of my examination of it. I would like to think that people would accept the fact that when courthouses were located in the earlier days we did not have a great deal by way of communications, that we did not have transport on anything like today's scale. To travel five or six miles to a courthouse then was a major effort but that is no longer the case. I will be looking for consensus on this effort but I expect not to have an easy task.

When the rationalisation of schools and of post offices — for which I had responsibility many years ago — was discussed I remember only too well the experiences I had at that particular time when I turned up certain little stones and found that people who had told me that they agreed in principle with what I was doing, but were the first to give me a tap on the ankle and throw me aside when it came to specifics. In this day and age we must get value for money if we are to provide the facilities which are urgently required. I should like to think that, if I am in a court and want to consult with my legal adviser at least I am entitled to privacy. If during the course of a long session, I needed bathroom or toilet facilities I should like to think they would be available. Often women, especially pregnant women, and children need privacy but not even the basics are available. This is a problem we must tackle from every angle. A sum of £1 million or £2 million could be spent doing up a courthouse in Tralee or Waterford where large sums have been spent but that would provide only for a few. This is a problem we are tackling. Deputy Flanagan asked whether this area should be the responsibility of the Minister for the Environment or the Minister for Justice. I do not want that responsibility. I can help in redefining the geographical location of the courts as that is my responsibility and I can help the Minister for the Environment in making the case for funding through local authorities or whatever other way it can be done.

Deputy Colley objected to the limited nature of the Bill and suggested it should be included in another measure. I fail to see her difficulty because this is not a contentious measure. She suggested incorrectly — and this is where her suspicious mind was working overtime unnecessarily — that I could have it as part of the Judicial Separation Bill. Deputy Colley should know and I am sure she will accept that this Bill was on the Order Paper before the Private Members' Bill came onstream.

The proposal to abolish proceedings for restitution of conjugal rights is straightforward and not contentious and can be implemented in one section of a Bill. In reply to a point made by Deputy McCartan the remaining recommendations of the Law Reform Commission's report dealing with jactitation of marriage and related matters, raise complex issues and these are being examined in my Department along with other proposals in this area of family law. Rather than hold up this proposal until another, more suitable, legislative vehicle came before the House I decided to ask the Government for permission to introduce this Bill in its own right. That is the only reason for it. I could have sat back and done nothing about it, but I would certainly deserve to have been taken to task in that event.

Deputy Colley raised many questions pertaining to family law reform generally and to the particular matters covered by the Private Members' Bill on judicial separation. Deputy McCartan raised political points about the Bill but I will leave that for another day when we will have plenty of opportunity to deal with those points. I do not think the Deputy really wants that and I forgive him. We will have ample opportunity next week in Government time and in Private Members' time to discuss these matters in the context of Report Stage of the other Bill so I will reserve my comments until then.

There never has been a Bill where there were not basic differences on important issues. There never has been and never should be hope or expectation that Bills would be given easy passage. They must be properly debated. If we cannot have consensus — and as we would like to have on practically every legislative measure here — then we tease them out as carefully as we can, we try to amend and to convince the others that ours is better than theirs and they try to convince us that theirs is better than ours. At the end of day we go through the voting system. There will not be any undue delay but there will have to be full discussion on issues where there are basic differences between different parties and different groups. When these matters are finally debated, when it is decided in whatever way, that one votes Tá and another Níl so be it.

Mr. Flanagan

Is this the softening of the big stick approach of the Minister for Finance?

An Leas-Cheann Comhairle

No corporal punishment.

Mr. Collins

Deputy Flanagan should not be saying things like that. I never used a stick in my life. I am a great believer in——

Mr. McDowell

Carrots.

Mr. Collins

Yes, and getting people to understand my way. Deputies McCartan and Colley queried why it took so long to implement the legislation. I should like to remind the House that the Law Reform Commission Report in question was produced during the term of office of the previous Government, in 1983. I am not making any point about that; it was there from 1983 to 1987. When I saw it in 1987 when I went into the Department of Justice, I felt it had been there long enough. My reaction was: let us get it up front and do something about it; that is all; there is no other reason. I understand the reasoning of my predecessors trying to get the whole thing together. I can accept that. I too had that choice——

Mr. McCartan

Crusading.

Mr. Collins

There was advice given to that effect — why not try and get the whole thing up — and there was no particular reason. I am not here making any political point. It was suggested by Deputy McCartan that this Government are lacking in commitment to progress in the family law area. I want to say to him that I refute that suggestion. The truth is that no one party in the House can claim an exclusive monopoly on progressive family law measures or indeed social concern generally. That is generally accepted by the greater majority of members of most parties. Our record in this area goes back as far as the Succession Act of 1965 that was prepared by the present Taoiseach as Minister for Justice. That Act was hailed from the time of its passage as a revolutionary measure, and is still recognised internationally as a model of succession legislation. Its provisions, protecting the interests of a surviving spouse and children, and the clarity and fairness of the intestacy provisions which diminish the danger of an estate being frittered away on legal costs, rightly, are something of which we in this House, as a whole, can be proud.

I would remind the House that, more recently — at the beginning of 1981 — at least four significant Acts affecting the family unit were passed under a Fianna Fáil Government. For example, the Maternity (Protection of Employees) Act made significant improvements in the position of mothers in the workplace. The Family Law (Protection of Spouses and Children) Act made the barring order remedy — so valuable in protecting the victims of family violence — more readily enforceable. The Courts Act of that year — by reorganising the jurisdiction of the lower courts — made a wide range of family law remedies more accessible and affordable. The Family Law Act, 1981, abolished anachronistic actions for criminal conversation, seduction and harbouring of a spouse and breach of promise of marriage. Those are Acts with which I was intimately concerned.

Coming to the very recent past I might remind Deputies of the Status of Children Act, 1987, whose provisions constituted a major advance across the full range of family law. That Act was brought to fruition under this Government. To the limit of the powers available to me I have ensured that the necessary subsidiary legislation is in place to facilitate the fullest operation of the provisions of that Act. Deputies may contend that all I did vis-á-vis the Status of Children Act was take a Bill already prepared and introduced by the previous Administration and bring it to fruition with a few improvements here and there.

That takes me to the nub of my argument, that no individual in the Oireachtas, no party in this House, has a monopoly on social concern. It would be divisive and unhelpful to further progress in the important area of family law reform were such a claim given general credence. I am happy to stand over the record of this administration, and of my party in office in the past, in the family law area. I am sure other members of other parties would do likewise with regard to their terms of office, and good luck to them. Progress generally in this area has been by way of genuine co-operation between Members of this House across party lines. Our collective commitment to finding the best possible solutions to family law problems must, where possible, be based on the consensus approach.

On the question of restitution of conjugal rights and marital rape, I should say that, in recent weeks, there have been a number of press reports which have mistakenly drawn a connection between this Bill and the question of making sexual intercourse between a husband and wife, against her will, a criminal offence —"marital rape", as it has been called. Indeed Deputy McCartan and others saw a sinister connection between the two. There is no such connection. The provisions of this Bill abolish an old civil action — which, as Deputy Barnes correctly said, has fallen into disuse — which entitles a deserted spouse to sue for restitution of conjugal rights. A restitution of conjugal rights order can be complied with merely by the deserting spouse resuming cohabitation. However, such an order cannot requre a spouse to resume sexual relations. Neither this nor any other legal recourse can require a spouse to engage unwillingly in sexual intercourse with the other spouse. The abolition of this action is not contrary to what some have suggested, a necessary preliminary to the criminalising of sexual intercourse by a husband with his wife against her will. Even if this legislation were not passed it would still be possible to deal with the marital rape issue. I should stress they are not related.

The question of making marital rape an offence is one of which the Law Reform Commission made recommendations in a recent report. A Bill arising out of that report — as the Tánaiste said on the Order of Business this morning — will be published. I want to say to Deputy Barnes that I am as anxious as is she and every other Member of this House to have this Bill before us and discussed thoroughly and properly as quickly as possible. It is my intention to ensure that that will be the case.

Question put and agreed to.

Bill put through Committee, reported without amendment, and passed.