Dáil Éireann díospóireacht -
Wednesday, 7 Jul 1993

Vol. 433 No. 6

Private Members' Business. - Matrimonial Home Bill, 1993: Second Stage (Resumed).

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

Mr. Durkan

I welcome the Bill which I hope will succeed in dealing with the number of problems pointed out by my colleagues on this side of the House and the Government side. The Family Home Protection Act did not live up to the spirit of its intentions and the equal share in the family home aspiration did not carry the same weight it will carry in this Bill. I remember the welcome extended to the Family Home Protection Act which was innovative at the time and focused attention on a serious problem. This Bill goes further and stipulates without equivocation the need to recognise the half share in the family home notwithstanding the financial contribution made by one or other partner because, after ten or 12 years, depending on the wage earner, it was suggested in some quarters that one partner had contributed more than the other. The partner who administers the household finances and who looks after the children also contributed to the well-being of the household in a substantial fashion but it has taken almost 20 years to finally recognise the commitments and efforts of the partner who stayed at home.

Although public representatives generally are not members of the legal profession we have all dealt with marriage breakdown cases. In some cases the family home was sold. I hope that when this legislation is passed it will ensure that the system cannot be abused and that a wife, for instance, cannot be inveigled into signing documents on foot of bank loans or mortgages which will force her to dispose of her share — or part of it — in the family home. A number of cases come to mind in which people were forced to sell their shares to honour debts. Some of the cases went to court but others, unfortunately, because of the financial plight of the woman of the household, did not get that far and the wife who had signed a guarantee to a financial institution in regard perhaps to a business or a second mortgage found that the financial institution did not show any great concern for the well-being of the family or of the children when they moved in to get their part of the bargain.

This legislation will guarantee a recognisable share in the family home for both partners and a wife will not find herself out on the roadside. The law is peculiar and in future even this legislation may be found inadequate. When the law is tested a number of times in the courts we usually get a clear indication as to how it will affect the people for whom it was intended. If, after testing this legislation in the courts, inadequacies are found I hope we will not wait 15 or 20 years to remedy them. We cannot be certain of what will happen in future and when a case goes to court the outcome depends on the ability of opposing counsel to make their cases. If this Bill is found inadequate in achieving its objectives, the Minister of the day should ensure that the inadequacies are quickly corrected.

Mr. Kemmy

I congratulate the Minister on introducing this Bill in fairly good time. The Minister has worked hard behind the scenes with his advisers and civil servants over the last five months preparing this measure. That shows what a Government can do without ballyhoo, hype and publicity. The Government is judged not on what it says it will do but on what it achieves in terms of legislation. The Labour Party is keen to ensure that its partnership agreement with the Fianna Fáil Party is put into operation. It is important to achieve what we set out to do in this House. It is also important to have responsible opposition to legislation, not gamesmanship or brinkmanship and to have the support of the Opposition in improving legislation where necessary.

I am pleased to welcome this Bill and I congratulate the Minister on his hard work. I hope we will have similar legislation in the future. I have had a long interest and track record in this area and spoke to the Minister privately about this matter. It is a fact that marriages break down although I wish it did not happen. Sometimes our opponents almost accuse us of wanting or encouraging marriages to break down.

As I said in the House previously, in the absence of divorce marriages still break down and if we were to ban funerals this would not mean that people would stop dying. Therefore, by banning divorce we will not stop marriages breaking down. That simple truism is often ignored.

A combination of factors cause marriage breakdown in society. These include economic factors, something not understood by those who are well off. Marriage breakdown can often follow when people become bitter and there are recriminations. This can lead to disputes between the couple as to how the home or property should be divided.

During the last referendum campaign I was disappointed at some mean and petty arguments used. People who did not own much property were worried about succession rights and they were misled and fooled into thinking by the propaganda and the untruths that their rights would be taken away. It is our aim as a party to enhance their rights and further democracy in this society. I would not lose a drop of sweat, not to mention blood, if I thought some people's rights would be whittled away.

As I mentioned to the Minister, I have one reservation about the Bill and the legislative package that he has presented to the House tonight. As a local representative, I have been assiduous in seeking to have people put on the housing list of Limerick City Council, particularly those living in bad housing conditions. In this regard, during the years I have encountered an obstacle in seeking to help deserted wives who have raised their families on their own since they were deserted by their husbands ten to 20 years before. Sometimes this meant that they had to seek employment in an effort to cope and they have had to meet the rent on their own.

These women have found that whenever a tenant purchase scheme is offered by a local authority, having been approved by this House, they will not be able to qualify and purchase a house under the terms and conditions laid down if their husband stayed in the house, even for one day, and his name is on the tenant agreement. Even though her husband has not made any attempt to maintain her or her family she will be precluded from buying a house under a tenant purchase scheme if, as I said, he had stayed in the house even for one day. In such circumstances she will have to go through the most convoluted process to acquire the house. This will involve carrying out a search to find her husband even though he may have left her many years before, placing expensive advertisements in the press, engaging a solicitor and sometimes a barrister.

This provision was included in legislation for a good purpose, to prevent a wife being put out of the house but sometimes it can work against a wife who has been abandoned or deserted and where her husband's name appears on the register. I ask the Minister to review this matter. While it was meant to provide protection it may preclude a woman from buying a house.

Mr. Taylor

I assume the Deputy is referring to cases where the tenancy was taken out in both names.

Mr. Kemmy

Correct. The legislation was not designed for that purpose, to punish a woman with an excellent record when it comes to paying rent and rearing her family. It is very important that the Minister should look at this matter again to see if this obstacle can be cleared. I should have said at the outset that I wish to share my time with my colleague, Deputy Mulvihill.

Acting Chairman (Mr. Kirk)

Is that agreed? Agreed.

Mr. Mulvihill

I thank my colleague for giving me the opportunity to contribute to this important debate and I congratulate the Minister for making an attempt to solve what is a serious problem. We have tried to sweep this issue under the carpet and deny that a problem exists. I understand that in 1991 approximately 47,000 families were experiencing difficulty and wished to avail of divorce. Each day of the week people come to me to seek my advice on the question of home ownership. Under the law in the past the man was considered to be the breadwinner and the king of the castle while his wife filled a position in that castle. I congratulate the Minister for changing that law.

When the partners in a marriage encounter difficulty pressures build up in the home and the children can suffer as a consequence. This will have to be taken into consideration when the property is being disposed of. Last week a woman indicated to me that some years ago she was afraid to seek a separation as she would no longer be entitled to a share in the family home and that she would be kicked out on the street with her children. I also know of a widower in my constituency whose wife died a few months ago. He is a teacher by profession and has to rear five children. He is worried that he will not be able to afford to continue to stay in the house. During the last referendum campaign it was said that we would come up with an Irish solution to an Irish problem but we have not come up with one in the meantime. I do not want to heap praise on the Minister just yet but I am glad that it is he who is dealing with this matter given that he has dealt with many such cases.

Accommodation is provided in Cuanlee House in Cork city for wives and children who are kicked out of the home. Indeed, some weeks ago the Minister met a deputation from that centre who outlined the difficulties that these women encounter. In coming to a decision, the interests of the children will have to be taken into consideration. I know of cases where the children were left to wander the streets. Children experience trauma when their parents separate particularly children between the ages of nine and 12. It is possible that a child could hold a grudge against society which will remain with him for the rest of his life.

One could talk at length on the issue of marital breakdown. As I have said, the home is considered to be our castle in which we seek unity and friendship with our spouse and children. Unfortunately, many marriages do break down due to outside pressures. These include financial problems and pressures associated with unemployment. At present 300,000 people are unemployed and in many instances marriages and relationships are in trouble. On top of this there is the question of the family home. If steps could be taken to improve the position in regard to ownership of the family home it would relieve much of the pressure on these people. I ask the Minister to give special consideration to the position of children under this legislation.

Mr. McGrath

Like many other speakers, I welcome the Bill and compliment the Minister on bringing it forward. It is interesting to note that I am the third representative from my constituency to contribute to the debate. This represents a 100 per cent turnout for my constituency. I am not sure if this reflects the level of competition which exists between the public representatives from County Westmeath or whether we are extremely conscious that social issues need to be addressed. I think it is a unique record for County Westmeath that its three public representatives have contributed to this debate.

Marriage is a commitment for life entered into voluntarily by the contracting partners. We seem to have lost sight of this fact. Many young people tend to regard marriage as a temporary commitment which may last for a while. Marriage is a sharing of ideas and ideals, of hopes and aspirations, of goals and dreams. The Minister of State at the Department of Enterprise and Employment, Deputy O'Rourke, said that she favoured raising the age at which people could get legally married. I agree with her, not just because she is my constituency colleague but because I believe young people enter into marriage much too quickly without giving it enough thought and adequate preparation. I think that the legal age at which people may get married — the Minister can correct me if I am wrong — is 18. People under the age of 21 who get married must have the written consent of their parents. I am of the opinion that the age at which people can get legally married should be raised to 21 years. All too often young people rush into marriage, and in some cases these marriages turn out to be a disaster. Consideration should be given to setting up a course which would prepare people for marriage. I do not know if this is within the remit of the Minister. The various marriage guidance agencies are carrying out much good work. While they are receiving State suppport at present, this funding should be increased.

Most marriages survive, with varying degrees of happiness, until one of the partners die. However, a proportion of marriages end up in separation. All speakers regard this Bill as a long awaited and long sought after breakthrough for women. It is important to say that this Bill is also a breakthrough for men — men who marry women with property, men who marry into the family home of their wives and men who marry into a form or business owned by their wives. The rights of these men will also be recognised under the Bill. This is an equality Bill — men and women in similar situations will have the same rights.

Many speakers said that the Bill did not go far enough, that shared ownership of the matrimonial home may not be enough. This is an interesting concept which should be pursued. What about spouses who have given many years of their lives working in a partnership or building up a family business and who in the twilight years feel they have no rights to what they have created? This Bill will be poor consolation to those people. Will a spouse who leaves his or her husband one month after they get married have the same rights to the matrimonial home as a spouse who has shared a home, worked in it and shared the responsibilities and hardships of family life for many years? I do not think this should be the case. Consideration should be given to this shortcoming in the Bill. I am not sure how this issue could be addressed or how one could devise a solution with which we would all agree. A previous speaker referred to women who brought a dowry to her husband's family farm when she got married and who 40 years later had no rights to that farm. Will she have the same right to the family home as a person who walks out on their marriage after one week? Perhaps there could be a graduated increase in rights, so to speak, in different cases. This matter needs to be looked at in greater depth.

I know the Minister is walking on a minefield. Having regard to discussions which took place in, I think, 1985, this Bill could cause tremendous difficulties. All Irish people hold property very dear to their hearts — the high level of home ownership in this country in comparison with other European countries proves this. No person who has a family business wants to see the family name disappear from over the door of their shop. No farmer wants to see land which has been in his family for generations being sold. I wonder how far down the road can we go in ensuring total equality so that a husband and wife have an equal share in all property. I accept that difficulties may arise if a business has to go into receivership. I ask the Minister in his reply to say how far down this road we can go.

I wish to refer to the rights of children. Section 6 (3) deals with the position of children where perhaps a spouse has died. It provides that the Circuit Court has the right to decide most of the issues which may arise. Where one of the spouses has died, the child has only nine months, or three months after the grant of representation, to make an application to the court and prove that it is unfair or unjust that section 4 be applied in that case. A minor child can, with the consent of the court, make such an application. Although these provisions attempt to make matters more certain for persons buying property, the amount of unease will be considerable. A person buying property where one or other of the joint owners has died will be faced with the possibility that three months after the grant of representation any one of the children can apply to have the sale set aside. Furthermore, there is the distinct possibility that some of the minor children could come back for a second application, perhaps claiming that they suffered from undue influence in the first instance. Even though the draftsman has, with the best of intentions, provided that the court can supervise an undertaking given by the child not to make an application, I am not convinced that the tragic loss of a spouse would be helped by the necessity to make a long and expensive court application.

A further point arises in regard to people living in rural areas. Circuit Court judges are already greatly overworked. Indeed many judges have complained that family matters are taking up more and more of their time and they do not have enough time to deal with these cases as criminal cases get priority. The assumption that the Circuit Court will be able to handle all these matters will come as bad news to the public, the Judiciary and practitioners who are already trying to cope with an overloaded system.

The buildings in which many Circuit and District Courts are held in rural areas are in an atrocious condition. A building which has closed in Athlone had no room where familes could meet to dicuss cases with their legal representative. Indeed, many of these discussions had to take place in the corridor or out on the street. By referring these matters to the Circuit Courts the Minister will further overburden the system, thus leading to more trouble. This Bill is very intricate from a legal point of view and as a layperson I find it very difficult to interpret. I am delighted it is being referred to the Select Committee next week as this should provide us with the opportunity to discuss it in detail. I am not a member of that committee but I am a member of the Select Committee on Finance and General Affairs and we found the briefings by civil servants invaluable. It would be no harm I suggest, to arrange briefings for Members. I suggest the provisions should be explained in every day terms to practitioners who, in turn, can explain them to the committee and deal in detail with the questions that may arise on its intricacies. There would then be a more enlightened discussion and, as a result, we would have better legislation. It may be difficult to make these arrangements but from my experience the briefings by officials of the Revenue Commission were very worthwhile.

In relation to the matrimonial home on a farm I know, as I come from a rural area, the Minister will run into all sorts of difficulties. On the typical farm it is very difficult to separate the family home from the cluster of buildings and the yard adjacent to it. It will be extremely difficult to define where the matrimonial home ends and the farm begins. I know this will only apply in a minority of cases where there is a break up of the marriage and it may be decided to sell the family farm. It will be almost intolerable to work on the farm thereafter if the sale has gone though under duress. Another Member raised the difficulties that will arise when the matrimonial home is above the shop or the pub. How does the Minister propose to get over these difficulties?

As it is proposed that this legislation will be retrospective how will it stand up to a court challenge? Article 43.1.2º of the Constitution refers to private property as follows:

The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath and inherit property.

Will the retrospection provisions cause a difficulty? For example, someone who entered into marriage 30 or 40 years ago will now find that the matrimonial home becomes jointly owned with his or her spouse, and does that cut across the guarantee given in Article 43.1.2º?

I acknowledge that Article 43.2.2º states:

The State, accordingly, may as occasion requires delimit by law the exercise of the said righs with a view to reconciling their exercise with the exigencies of the common good.

Does the Minister envisage using that provision? I believe the provisions in the Bill will be challenged in the courts and, perhaps, it should be referred to the Supreme Court at an early stage to avoid possible difficulties later. Like other Deputies, I received correspondence from solicitors and this seems to be the point they are making. There is a number of outstanding cases before the courts at present that hinge on this question and I wonder if the retrospective nature of the legislation will cause difficulties later.

I hope this legislation will have a speedy passage into law.

Mr. Costello

I welcome the Minister for Equality and Law Reform to the House. I compliment him on the speedy manner in which he has brought forward this long overdue legislation within the first six months of his term of office. It is long overdue that we dealt with the question of both spouses' interests in the matrimonial home. In the past some cases were successful in the lower courts but on appeal were unsuccessful and it is high time that we lived up to such responsibilities and brought forward legislation in this area.

This Bill is a recognition of the enormous amount of work that women do in the home. Heretofore it was unrecognised and unpaid and we have neglected to deal with this as a society and failed as legislators to rectify it. The Bill further recognises the constitutional importance attaching to marriage and the family because it provides support and financial security and in that sense promotes a long and fruitful happy family relationship. It underpins marriage while others may think the opposite.

It is welcome in the preparation for a divorce referendum that the Government in the Programme for a Partnership Government indicated would take place in 1994. This is, therefore, a timely Bill. No doubt we all remember the last disastrous referendum on divorce. People were confused by the claims and counterclaims of what would happen to either spouse in the event of the dissolution of their marriage and subsequent remarriage. People did not know how things would operate in regard to children or to property. We were unprepared because we had not the necessary legislation in place in the run up to the referendum. That is why it is all the more important that we now smooth the way by preparing the groundwork so that people are made aware of the implications of divorce.

It must be remembered that the opinion polls at the time of the previous referendum on divorce indicated that a very substantial number of Irish people wanted divorce, the ratio was roughly 2:1, but when the day of reckoning came it had reverted to 2:1 against. This was not because people had changed their views. They still wanted a facility whereby an unhappy and non-existent relationship could be dissolved and an opportunity to be available to establish a new relationship but they baulked at the obstacles that were presented in the steps along the way. The possible consequences terrified people. Fear of the unknown and the many obstacles that were raised deterred people from voting in favour of the proposal in that referendum. A majority of people want liberalisation of our laws in this respect and I have no doubt about the direction we will go in a number of years. It is important that we smooth the way.

This legislation is welcome and necessary in its own right. It does not have to be there for any particular purpose or lead to any particular end. The law in this regard has been inequitable in the way spouses have been treated in the context of the matrimonial home or the family home; and there is a distinction between the two. The family home relates in law to the situation where the spuoses are resident in the home. The matrimonial home does not require residence per se. There has been no recognition of the enormous work done by the very large number of women who spend long hours at home doing work which is very often thankless and never financially remunerated. The Central Statistics Office in 1991 gave us an indication of the extensive work of the spouse in the home. In that year 640,000 women were working full-time in the home. That is a colossal number, almost two-thirds of one million. Thus we can see the extent of their contribution to the matrimonial home, creating it, promoting it, increasing it as an asset in every respect. That must be recognised. It was recognised by the Law Reform Commission, the Commission on the Status of Women and most latterly by the Oireachtas Joint Committee on Women's Rights. They all recommended that a system be put in place whereby the matrimonial home would be regarded as of joint and equal interest between the spouses. Unfortunately the law did not keep pace with the wishes of society or with proposals of the various bodies who sat and reported. At last we have a Minister bringing forward proposals to regularise the situation.

I do not intend to go through the provisions of the Bill. The main provision is that existing and future matrimonial homes should be vested in both spouses as joint owners and where one spouse dies the surviving spouse becomes the full owner. This extends to residential homes in urban settings, to farm homes in the country, to homes where a small business might be run, homes over a shop or whatever. It refers to the house and to the immediate appurtenances in terms of joint ownership.

Section 7 relates to what might be called the "opt out" clause where either partner may opt out of a joint relationship which allows a married couple or a couple contemplating marriage to exclude the application of section 4, the section relating to joint ownership of the matrimonial home. While an agreement which would exclude such a partner may subsequently be annulled I am concerned about the lack of constraints on its operation. Undue pressure might be brought to bear on one or other spouse to sign on the dotted line and either in advance of the marriage or during the marriage to waive their rights under this legislation. For that reason I am glad the section specifies that the Minister may make regulations. I would prefer the word "may" to be changed to "shall". If the Minister does not make regulations, then there is no determinant procedure whereby agreements would be entered into to exclude or opt out of one's entitlements. I ask the Minister to comment on that in his summing up of the proposals for regulations of this nature and to say whether he will be amenable to accepting an amendment at a later stage that would allow for a change in the wording from "may" to "shall".

Those are the main issues I wish to raise. I will mention one or two other points. I am sure we all at one stage or another have had personal knowledge of marriages that do not exist any longer and of the hardship imposed when two people are by law unable to alter that situation and be free to embark upon a new relationship in an open fashion. As an open society concerned for the wishes, needs and lives of all the citizens, we should provide law which enables them to live their lives to the full in entering into one relationship, being able to leave that relationship in proper circumstances and being able to enter into another relationship. This Bill has a good balance in that respect because in it we are recognising the importance of marriage.

I do not think it has been recognised sufficiently that this Bill underpins not the legal entity of marriage but marriage as a desirable relationship and the importance of the security of marriage. That is the key element of this Bill. It is attaching to marriage a security and support system that has not previously existed. We cannot divorce the financial support mechanisms from the emotional support mechanisms. If such mechanisms are there it is likely that the marriage will endure. This element of the Bill is most welcome. The other elements in relation to equity, the recognition of the contribution made by spouses to developing and maintaining the home, are contained in this Bill.

I look forward to its speedy passage through this House. I look forward also to the next stage of the process where the Minister will begin to prepare further for the referendum promised in the Programme for a Partnership Government by producing the referendum Bill for debate in this House so that the issue can be put to the people with a greater degree of knowledge than in the past.

I compliment the Minister on the speedy presentation of this legislation. I am glad to welcome it to the House.

Mr. Browne

(Carlow-Kilkenny): I am glad to welcome this Bill and to say to the Minister that he is fortunate that in 1993 the Opposition will not be playing a neutral role and then oppose the Bill, as happened in the past, although not by his party. When people were neutral they did everything possible to sabotage any effort which was made. I welcome the Bill because it is difficult to deal with marriage breakdown and especially with property. Earlier today one of the Deputies said marriage was all about property. That came as a shock to me. I thought marriage was all about “love and marriage” and so on, but property seems to play a very important role especially when marriages break up.

I am old fashioned enough to think that marriage should be for life and that people should live happily ever after, but we have to be realists as well. Unfortunately, marriage for some ends very quickly and there is no great enjoyment in it. When marriages break up everything should be made as easy as possible for the couple. The division of property etc., should not lead to a big legal wrangle and a couple should know automatically what will happen. We welcome the Bill for the reason that it is making an effort to do that. We have all been briefed with documents, but I do not like reading them in front of somebody who was a practising solicitor and who, by the way he is going, will not be practising again for years to come.

The difficulty with property arises where farms are involved. I note that land is omitted from this Bill but the farmhouse itself is included. The case has already been made in the House about the actual farmhouse on a farm, the surrounds and how much goes with the house, whether it is the orchard, the vegetable garden or whatever. Difficulties will arise for farming afterwards if the farmyard is going with the farmhouse and the farmer is trying to use it. There is also the whole question of businesses linked up with the home — for example the case of the family home which is over a public house or shop. It is very difficult to legislate for peace, comfort and good relationships. The breakdown of marriages causes all these problems and no matter how one tries to divide property there will be difficulties.

Several speakers today referred to section 7. When I first saw the opting out clause I thought it could pose a danger. I am sure it is well intentioned. Does anyone really think that the normal couple getting married have the slightest idea of difficulties ahead or what might happen? One partner could easily be talked into signing an opting out clause because they do not foresee any crisis arising where there would be a discussion on the division of property. All they can see is long sunny days, starry nights and happiness all the way. I hope that is the experience of most people. I am sure section 7 is well intentioned. Perhaps it is intended to prevent golddiggers from getting married and deciding there is great property, that somebody can decide to seal it off and ensure that this will not arise.

This Bill consoled me very much. I realise now that my wife must have married me for love because she certainly did not marry me for my property or my money. I am a very happy man tonight.

Mr. McGrath

It was the Deputy's good looks.

Mr. Taylor

The question is: will she sign the opt out clause?

Mr. Browne

(Carlow-Kilkenny): She will not be allowed sign anything at this stage. She has suffered enough so she may as well continue. The length of time a couple is married is important. Sometimes marriages break up after three months or even after three weeks. I doubt very much if justice would be served by somebody claiming half the family home at that stage. The question then is: how does one manage that part? It is a matter that should be seriously considered. In my view a marriage should last at least 12 months before somebody could begin to make claims to property to which they made no contribution in the purchase, repair etc. People could be prevented from being fooled into marriage. It is amazing how many people are soft in the head when it comes to falling in love, or somebody fooling them slightly and disappearing after a couple of months. There should be a safeguard to ensure that they are not conned.

Section 4 (8) deals with shared ownership where, say, a parent, a mother and son, mother and daughter, father and son or father and daughter have shared ownership of the house. Perhaps the Minister would explain if when the new spouse comes they all have a third of the property? This is something I do not understand. As so many others have said, this legal document is not for people who have not studied law. One would almost need to be a barrister to understand all the details. In a document I have here I read that many legal difficulties arose from previous legislation, but I hope that will not happen in the case of this legislation. Loopholes and other difficulties will arise, but that is part and parcel of life.

I could repeat much of what has been said, but the Minister has heard it all. I welcome the Bill. I hope very few will have to use its facilities. We would all hope that people would not be in a legal wrangle over property and that marriages would not break up. Unfortunately they will break up and therefore I welcome the fact that spouses who are abandoned or ill-treated will have the right to claim without having to take out expensive law suits, that they will have some happiness and some defence in a future which may appear bleak at the time of the marriage breakup.

Minister for Equality and Law Reform (Mr. Taylor)

First, I sincerely thank all the Deputies who contributed to the Second Stage of this Bill, which is a landmark measure, as many Deputies have been good enough to point out. There have been some very constructive contributions from all sides of the House. I look forward to considering all the points on Committee Stage and I hope we have adequate time to discuss them in a reasoned way. I hope Deputies will forgive me if I do not cover all the points raised but I assure them that they have been noted and will be considered carefully. I am sure many of those comments will be put forward again in the form of amendments on Committee Stage when they will be examined constructively and objectively.

The opt-out clause appears to have attracted most comment and criticism from Deputies on all sides of the House during the debate. Deputy McManus took an extreme position on this matter and suggested that there should not be a provision for opting out in any circumstances. Other Deputies made the point that if there is an opt-out provision it should only be allowed if prior advice is given to the opting out spouse by a lawyer, in other words, the person's consent to opt out would be signed and witnessed by a lawyer. That is a fair point which we have already discussed at length in the Department.

It would not be reasonable or proper to compel one spouse in a marriage to receive and accept a half share in a tenancy or valuable property if he or she does not want to do so. This is a free country and a spouse should not be compelled to accept a half share in a property if he or she does not want it.

I am sure we will discuss at length on Committee Stage the question of whether it should be compulsory for a spouse to seek legal advice and have the opt-out form signed by a solicitor, but in the meantime, I will keep an open mind on the matter. However, as many Deputies referred to that matter I will make a couple of points now. A wife may be under duress to sign an opt-out form, but it is probably fair to assume that even if she went to a solicitor and listened to what he or she said, similar duress would apply in regard to signing the opt-out form. There is a down side to that question as well because in general law if a person signs a document under duress the court can void it. A person can go to a court at any time and say that he or she was compelled to sign a document and it would be declared void. However, if the document was witnessed by a solicitor a person would not succeed in that regard. A court would not listen to a claim that it had been signed under duress because it will maintain that the person had independent legal advice on the matter. There is a potential weakness in that respect. The broad general question as to why or whether people in full command of their senses should be compelled to pay a solicitor if they decide to opt out of a property clause is another aspect of the matter to which I am sure we will refer on Committee Stage.

Deputy Costello queried whether I will introduce regulations or whether I should be obliged to do so. It is my intention to introduce them and to draft a form on which it will clearly state that the form the person is signing is an important legal document and that it may be advisable to consult one's solicitor or adviser before signing it. I hope that will meet the requirements.

Deputy Flaherty asked whether a person or persons might challenge the Bill's constitutionality. It is open to anybody at any time to go to court and challenge the constitutionality of any Act, arguments can be made for and against that. In so far as this Bill is concerned, based on the best possible legal advice furnished to me, it is constitutional and in order from that point of view. I am aware of the reference to rights to private property in the Constitution but there is a saver there, the family is dealt with on an equal basis in our Constitution. It must be borne in mind that the Judicial Separation Act, which has operated without difficulty since 1989, gives power to a court to make many types of property transfer orders on the family home and on any other aspect of property in a separation case. Hundreds of property transfers, pursuant to court orders following judicial separations, have been made and continue to be made on a regular basis.

Deputy Flaherty also raised the question of mortgages. Section 14 of the Bill deals with liability for payment of the mortgage when the mortgager spouse dies. This section provides that the mortgage will continue to be a charge for which the property is primarily liable and in that case the surviving spouse will be liable for payments of the mortgage. Under the statutory joint tenancy during the lifetime of both spouses, the mortgager spouse is liable for payment as before. If the benefiting spouse can afford to pay his or her share, he or she should do so, and if they fail to do so in an unreasonble manner then in accordance with the terms of section 6 there is the possibility the court could make an order terminating their right to the joint tenancy. In any case, before any building society or bank will give a mortgage on a family home they invariably require the signature and guarantee of both spouses before they will grant it.

Deputy Flaherty asked if section 21 replaces section 12 of the Married Women's Status Act, 1957. That is the Act which gave the court power to settle disputes between spouses about matrimonial property. In fact, it is section 19 of the Bill before the House which replaces section 12 of the 1957 Act and in so doing takes into account the recommendations of the Law Reform Commission's first report on family law. The object of section 21, which was referred to by a number of Deputies, is to amend the existing law in relation to the effective contributions by a spouse to the improvement of real or personal property other than a matrimonial home jointly owned, by virtue of section 4 of this Bill. In other words, section 21 refers to business premises or premises owned by the spouses otherwise than in equal shares.

Deputy O'Donnell expressed concern about banks foreclosing on a judgment mortgage after the husband had pledged the home and business as security. The bank can only register a judgment mortgage against the husbands's interest if the judgment is against him alone so that the wife's share of a joint tenancy would not be affected on that basis.

Mr. Browne

(Carlow-Kilkenny): More than marriage breaks down.

Mr. Taylor

Deputy Harney suggested that the opt out facility should perhaps be extended to a right to opt out under the Family Home Protection Act also. I would be reluctant to do this without very careful consideration. The non-owning spouse is only required to give consent when the family home is being sold or mortgaged. However, I have gone some distance towards meeting this point of view by allowing a spouse to give a general consent in advance to any future sale of the home. However, if Deputy Harney wishes to raise this point again on Committee Stage I certainly will look at it in more detail.

On section 6, Deputy Bradford wanted to know whether the criteria for disallowing the joint interest of a spouse who has behaved wrongly would be spelled out more clearly and was wondering whether there would be any uniformity in decisions. I will look at the question of clarifying the criteria further on Committee Stage. Deputy Bradford also asked if I was happy about the giving of jurisdiction to the District Court in property matters and pointed out that it would put a heavy strain in staffing in that court. However, I do not envisage that there will be a large run of litigation as a result of the passing of this Bill. This is quite a different proposition from and is not comparable to the passing of the Judicial Separation Act which led, predictably, to a flood of applications to the Circuit Court which was the court provided for judicial separation. There was a huge increase in the volume of business and this has been increasing year on year ever since the Act was passed. I take the view that the number of applications brought under this Bill will be few. There will be various applications in regard to certain aspects of the matter but I do not envisage that many. In regard to a strain on staff, if cases go to court there will be a strain on whatever court they go to, be it the District Court or the Circuit Court. I think it was Deputy McManus who said that there have been bizarre decisions given in District Courts on occasions. I am quite sure there have. There have been some bizarre decisions given in Circuit Courts too on occasions that some Deputies will know about and——

Miss Harney

And in the Supreme Court.

Mr. Taylor

——in the High Court; we will say nothing about the Supreme Court. There is no monopoly on such decisions. As to the question of district judges dealing with matters of title to land, I take the view that district judges are the best qualified to deal with such matters. Having been for the most part solicitors that is precisely what they have been dealing with virtually all their professional lives and consequently they would be very well qualified in that area. There is a major advantage in giving jurisdiction to the District Court. The costs are only a small fraction of what they would be in the Circuit Court. Many of the applications arising under the Bill would be straightforward and of a summary nature. It is far cheaper and much speedier to deal with them in the District Court. One can be in and out of the District Court with a decision in a couple of months at the outside. In the Circuit Court the lists are hugely in arrears and there is a much more extensive array of paperwork necessary before one gets a hearing at all. In addition, one does not need a barrister to go to the District Court; solicitors do that on their own, whereas in the Circuit Court or the High Court one usually needs a barrister. There are many advantages in allowing the District Courts deal with some aspects of these matters.

Deputy McGrath or Deputy Browne suggested that there could be difficulties in defining boundaries between the house and the farm. There might be the odd case where there would be a difficulty in deciding such an issue. However, we are talking about spouses. We are not talking about marriages that have broken down. Most cases this will apply to are cases where marriages are proceeding happily and the purpose and intent of the Bill is to give recognition to the work that the wife has put into the family over the years. In most cases the spouses will agree on the boundary between the farmhouse and the farm.

Mr. Browne

(Carlow-Kilkenny): It would only arise when there are marriage difficulties. A happily married couple will not have any difficulty.

Mr. Taylor

In a case where there are difficulties the matter goes to court and there is provision for that. There may be a difficulty in drawing the boundary between the farmhouse, its adjoining garden and ancillary outhouses and the rest of the farm, but there is nothing insuperable about it. Any district judge used to dealing with title matters will look at the drawings or, if necessary, go and inspect the scene to see what it is reasonable to say is the garden and an appropriate adjunct of the house as opposed to where the farm begins. I cannot say I am that familiar with the layout of farms and farmhouses but from what I have seen of them in most cases the garden is clearly shown. The main reason for providing access to a court in the event of difficulty was not so much to determine a boundary line, which may be fenced off in any case, but to provide for access to the water supply. In many cases the house water supply comes from an area of the farm. In the case of a separation and the sale of the family home or farm the parties involved would require a right of way to gain access to the water supply. It is necessary to make provision for court access to settle such easement problems. I would not envisage that access to court would be sought in many cases.

Deputy Flaherty raised the question of whether the Judicial Separation Act would continue to apply in the event of parties separating following a marriage breakdown. The same provisions will apply in that case. The powers the court has under the Judicial Separation Act to make property distribution orders, including those in respect of the family matrimonial home, will continue to apply and there will be no change in that regard.

The District Court has no jurisdiction where a judicial separation is concerned and one must attend the Circuit Court in this regard. Deputy Harney raised at Question Time the costs of such a Circuit Court proceeding. The costs are substantial. As the law stands people are obliged to attend court even though the value of their assets may be very small and possibly less than the costs involved in obtaining a judicial separation in the Circuit Court. This is a matter we may have to examine in the future. We may have to provide District Court jurisdiction in this regard.

Deputy Bradford stated that an extension of the legal aid scheme might be necessary to enable spouses avail of their rights under the Bill. As I stated yesterday at Question Time, it is the Government's intention to extend and expand the legal aid service and preliminary steps are under way in that regard. I do not consider this Bill will involve any major recourse to the law or lawyers in the majority of cases. The impact and thrust of the Bill is automatically to vest joint ownership in both spouses without any real or pressing necessity to take any steps in that regard. This Bill provides for joint ownership and action will only have to be taken if a person wishes to opt out of a property contract.

If people wish to register their legal interests they will need to visit a solicitor. At present if a husband wishes to put the property into the joint names of the husband and wife he will also have to attend a solicitor. The costs of this operation would be much more expensive than having a simple registration document prepared under the terms of this Bill and lodged in the Land Registry or the Registry of Deeds. The costs involved would be minimal. It is not essential to obtain a registration document. The spouse does not have to attend a solicitor to obtain a half share joint tenancy interest under the terms of the Bill. The Bill vests this interest in them automatically without their having to take any affirmative or definitive steps.

Deputies McManus and Browne raised the case of a mother and son who own a dwelling jointly and asked what the legal position is if the son should get married. In that case the three parties do not become joint owners. The joint tenancy which formerly existed between the mother and the son is severed. In other words, the mother retains her half share and the other half share becomes the joint holding of the son and his wife. What was previously the son's half share becomes the joint half share of the son and his wife.

A question was raised as to whether the extent of the vesting of the interest in the matrimonial home should be on a phased basis to provide that one would get say 5 per cent of that interest after six months and 10 per cent after a year. I understand the thinking behind this suggestion but it is not a realistic proposition. Most people would agree that when one enters the state of marriage one enters a contract, whether it is for three weeks, three months, three years or 30 years.

Miss Harney

Three hours.

Mr. Taylor

Or three hours. I am sure Deputies on mature consideration——

Miss Harney

On mature reflection.

Mr. Taylor

——on mature reflection——

Mr. Browne

(Carlow-Kilkenny): That is a dangerous practice.

Mr. Taylor

——would consider it inappropriate to have a progression of interest. A husband and wife by reason of their relationship should become equal partners in their home and own it jointly on marriage. I am not referring to property outside the home. I am aware that the Commission on the Status of Women recommends that all property in a marriage acquired after the date of the marrige should be held on a community basis. We may progress to provide for that, but in this Bill we are just referring to the home in which the spouses live. Their home is their base and they both contribute to it and work in it. A special case arises in marriage and the intent of the Bill is to provide for joint ownership of the matrimonial home. This is the recommendation of the Joint Commission on the Status of Women.

Mr. Browne

(Carlow-Kilkenny): What is the position if a couple separated and never lived in the family home?

Mr. Taylor

If a couple never lived in the family home it might not be their matrimonial home. There is a qualification in the definition and the definition of matrimonial home may not apply in such a case.

The question was also raised as to why the Bill does not apply to people who are already separated. This point can be discussed further on Committee Stage but in most cases where people are separated they have made their arrangements.

Mr. McGrath

Not necessarily.

Mr. Taylor

That is not always the case, but in most cases the people have their arrangements. There are many cases where a matrimonial home would have been in joint names initially. When a couple separates there are many cases where the wife has bought out the husband's half share of the family home. I do not think any members would suggest in those circumstances that the husband should be revested with a half share in the dwelling.

Mr. McGrath

What is the position in cases where no agreement exists?

Mr. Taylor

In cases where no agreement exists and a separation has taken place an application will have to be made under the Judicial Separation Act. If the parties cannot agree to enter into a separation agreement it is appropriate for them to make an application under the Judicial Separation Act. It would be best for the parties to negotiate terms and enter into a separation agreement. If the parties cannot agree to this the Judicial Separation Act provides that an application should be made.

Many Members have commented that the Bill is complex. Before I started work on the Bill I did not realise how complex it was. However, I assure all Deputies that on Committee Stage I will endeavour to be as forthcoming as I can, and any help that I or my officials can offer before that will be given willingly. I look forward to Committee Stage when we can discuss all these complexities in detail.

Question put and agreed to.