Dáil Éireann díospóireacht -
Thursday, 25 Nov 1993

Vol. 436 No. 3

Matrimonial Home Bill, 1993: From the Seanad (Resumed).

The Dáil went into Committee to consider amendments from the Seanad.

Minister for Equality and Law Reform (Mr. Taylor)

I move that the Committee agree with the Seanad in amendment No. 9(a):

Section 1: In page 10, subsection 2 (c), line 43, after "acted""and, in relation to persons contemplating marriage, 'spouse' and 'other spouse' include whichever of those persons is appropriate in the context" added.

This amendment to section 7 (2) (c) of the Bill is designed to ensure that, in addition to spouses, persons, contemplating marriage must also obtain independent legal advice before opting out of joint ownership of a future matrimonial home. The House has already indicated its support for the principle underlying this amendment. It puts spouses and couples contemplating marriage on an equal footing so far as this matter is concerned and for that reason should find favour on all sides of the House.

Mr. Shatter

While I have no row with the Minister on this amendment it is symptomatic of what has happened to this Bill which is on an unprecedented legislative merry-go-round. In all my years in this House it is the first time I have seen a Bill debated in the Dáil on Second Stage, in special committee, on Report Stage, sent to the Seanad, returned to the Dáil, sent to the Seanad again and returned to the Dáil. This Bill could have been enacted much sooner if the Minister had taken seriously some of the proposals made by the Fine Gael Party on Committee Stage.

I want to draw the attention of the House to an amendment I moved at the Select Committee on Social Affairs on 9 September 1993 and which read as follows:

A declaration made under this section shall not be valid unless the party making such declaration has first obtained independent legal advice.

At the time the Minister made the case that there was no need to ensure that someone who intended marriage or who was a spouse obtained independent legal advice before signing away rights. He made something of a meal of opposing the proposal both in this House and on the national airwaves. The Opposition parties voted in favour and the Government parties voted against. On Report Stage the Minister introduced his own amendment saying he had taken Deputies' views into account. I am not criticising the Minister for that; I welcome the fact that he has been flexible but to and behold, despite having the backup of a Department and a programme manager, he incorporated a defective amendment in the Bill which was discovered when the Bill was debated in the Seanad. That should not have happened and it is not the only occasion changes were made. This Bill has been radically changed as it has gone through the legislative process. I am not criticising the Minister for accepting amendments. If he did not we would be wasting our time and I specifically praise him for doing so. However, the level of reconstruction required to make this Bill workable went beyond what should be necessary. We would not be dealing with this amendment today if the Minister had taken on board the amendment he and his collegues voted against on Committee Stage.

Inserting the word "person" as opposed to "spouse" addresses what the Minister is seeking to resolve. I support the Minister's proposal. It addresses the matter in a semantically different way from the way we proposed, but it is important that if someone is allowed to waive their entitlement to a statutory joint tenancy of the matrimonial home they get legal advice whether they waive their right prior to or after marriage. There is concern that someone caught up in the romance of an engagement could be fooled into signing documentation. If this matter had been better thought out on Committee Stage we would not be dealing with this amendment, nor would we have had to deal with some of the other amendments introduced by the Minister in the Seanad. On Report Stage we understood, because of assurances given by the Minister, that his amendment was adequate. It was discovered later that that was not the case. However, I support the amendment.

Ms O'Donnell

I formally welcome this amendment although it is a pity it was not accepted on Committee Stage. Perhaps it was a little ungenerous of the Minister to accept it in the Seanad and not in this House when it was well argued by the Opposition. In the heel of the hunt the Minister has seen sense and he is right to admit he was wrong. Many women go into marriage not realising they are entering into a contract which has a range of implications. If a woman, or a man, decides to waive the statutory right of joint ownership of the family home, legal advice is necessary given that there are inequalities in relationships, some based on economics and some just on self-confidence. The Bill is much better for this amendment.

Mr. Taylor

I thank the two Deputies for their contributions. I had grave reservations about the propriety of making it compulsory to obtain legal advice before waiving statutory rights. Even now I have some doubt about the matter. However, having deliberated over a period on the comments and correspondence I had with some Deputies, I am prepared to agree to the thrust of the amendment. A further adjustment was necessary because of the technical omission from the Seanad amendment of people contemplating marriage rather than being spouses. That point has been rectified.

I have taken the point on board but Deputy Shatter is complaining; he is not an easy person to please. He would complain even more if I did not accept the amendment. The important point is to produce the best possible Bill before it leaves the Oireachtas. I have been extraordinarily open-minded in dealing with a very technical Bill. I thank the Deputies for their help. It is now a better legislative measure.

Question put and agreed to.

An Leas-Cheann Comhairle

In regard to amendment No. 10, I observe that amendment No. 11 is related and that amendment No. 12 is consequential on amendment No. 11. They may be discussed together.

Mr. Taylor

I move that the Committee agree with the Seanad in amendment No. 10:

Section 8: In page 11, lines 32 to 48, subsection (1) deleted and the following subsection substituted:

"(1) Where an interest in a materimonial home has vested in both spouses by virtue of section 4—

(a) in the case of registered land, if one only of the spouses is registered in a register maintained under the Act of 1964 as owner of the interest, both spouses or (in case the spouse so registered has died) the surviving spouse shall be entitled, on application in the prescribed form by either of the spouses or by the surviving spouse, to be registered as owners or owner thereof, or

(b) in the case of unregistered land, if one only of the spouses appear from a deed or deeds registered in the Registry of Deeds or otherwise to be the sole owner of the interest, a declaration in writing that the interest has so vested may be made by either of the spouses or, as the case may be, by the surviving spouse and a copy of the declaration, certified by that spouse to be true copy, may be registered in that Registry,

and, upon such registration, any legal interest in the home vested, or becoming vested, in the spouse who is so registered or who appears from the deed or deeds to be such owner shall, subject and without prejudice to the rights of any other person, vest in both spouses as joint tenants or, as the case may be, in the surviving spouse.".

These amendments are largely technical in character and deal mainly with matters relating to the Land Registry. Two matters are being provided for. It is now made clear that where one spouse is registered as the sole owner of land which includes a matrimonial home, the other spouse has a clear entitlement to apply in his or her own right to be registered as co-owner of that home. Ideally this registration should take place during the lifetime of both spouses but, where the owning spouse has died without such registration having taken place, the surviving spouse is entitled to apply for registration.

To facilitate registration by a surviving spouse, the provision of the Registration of Title Act, 1964, whereby the Registrar of Titles is compelled to recognise the personal representative alone as having any rights in respect of the land of the deceased, is being set aside in the specific incidence of the matrimonial home. In addition, no assent by the personal representative will be necessary to vest the outstanding legal interest in the surviving spouse. The assent is a means by which the actual transfer of the assets of the deceased to the persons entitled under the will or intestacy is usually carried out. Any legal interest of the deceased in the matrimonial home will remain with the personal representative until it vests in the surviving spouse on registration, but the personal representative is precluded from executing any assent in relation to that specific interest or from transferring it to another person.

This amendment is a purely technical one because the equitable interest, that is, the real beneficial interest of the deceased has already passed to the surviving spouse by a survivorship, and any legal interest remaining is of a nominal character. Provision is also made to cater for the situation where the surviving spouse may have died before he or she had time to register their ownership interest.

Mr. Shatter

I see no problem with what the Minister is proposing, but there are some aspects I would like him to clarify. Am I right in saying that, when the joint tenancy is triggered under section 4, there is joint ownership regardless of whether it is registered, that the registration is just in the context of vesting the legal title and, if a spouse does not register, the beneficial joint ownership is extant?

What happens if there is a joint tenancy arising under section 4 and then the spouse who is acquiring the joint tenancy by virtue of the provisions of this Bill uses the partition Acts to create a tenancy in common? As I understand it in certain circumstances a tenancy in common can be created unilaterally. I ask the Minister to clarify the position in that regard and whether it is affected by these provisions in relation to registration. Alternatively, if the original owner of the family home, who had the home registered in his or her sole name, realises that the Bill is being triggered to give the other spouse a joint tenancy can they unilaterally and arbitrarily create a tenancy in common and by so doing deprive the spouse who believes he or she is benefiting under this legislation from automatically getting the entire ownership of the property in the event of the first spouse's death? When a tenancy in common is created out of a joint tenancy each spouse effectively has a beneficial ownership in one half of the property and can dispose of it. The Minister might indicate to what extent those provisions affect that position. Will he clarify further the effects of the removal of section 9 (4)? To what extent has the Minister addressed those issues and how they will be affected by his amendment?

Mr. Taylor

Deputy Shatter is correct in saying that whether or not registration takes place the coming into operation of section 4 immediately triggers beneficially a joint interest between the two spouses. In so far as the equitable beneficial interest is concerned that applies whether or not registration takes place. In ideal circumstances it is desirable that the legal interest would be vested also by the execution of the declaration in a simple format which will be prescribed by regulations that will cover both the registered and unregistered land. The legal and beneficial interest would be completed by the simple procedure of filing a document in the Registry of Deeds or the Land Registry. That would be the desirable procedure but if this procedure is not followed, the beneficial joint vesting takes place.

Deputy Shatter raised the question of whether a unilateral declaration can transfer joint tenancy into a tenancy in common. I understand it is not possible for one person alone by a simple unilateral declaration to effect such a transfer. It is questionable whether ideally that should be the position. On one occasion when the Law Reform Commission considered that point I made representations to it suggesting that that power and position should be considered for adoption. It referred to my representations in one of its reports but, having considered the matter carefully, it decided not to alter the position as it did not consider it necessary to allow a unilateral declaration by one party to a joint tenancy. It would probably be open to a joint tenant to bring an application to court under the partition Acts to apply for a partition and the court, I think, has certain discretions in that regard. If the joint tenancy which applies to the matrimonial home was partitioned or changed into the status of a tenancy in common, the registration provisions would apply in a similar context to that which applies to any tenancy in common although the position in those circumstances would be different.

Mr. Shatter

Will the Minister clarify if subsequent to registration a section 6 order is made and the courts decide to deprive someone of his or her joint tenancy what will be the procedures for deregistering if he or she had already registered a legal interest in it?

Mr. Taylor

I understand a certified copy of the court order would go to the Land Registry and the position would revert. If the court made an order under section 6 cancelling the vesting which had taken place under section 4, the Land Registry would act on the court order which would be filed with it and alter the register accordingly.

Question put and agreed to.

Mr. Taylor

I move that the Committee agree with the Seanad in amendment No. 11:

Section 8: In page 11, after line 48, the following subsections inserted:

(2) On an application pursuant to subsection (1) (a) by a spouse who is not the registered owner of the land concerned for registration in such a register as aforesaid of both spouses or (as the case may be) the surviving spouses as owners or owner of the matrimonial home, the Registrar shall be bound to assume that the applicant is acting correctly in relation to the application, and section 61 (2) (which provides that the Registrar shall recognise personal representatives alone as having any rights in respect of land of the deceased) of the Act of 1964 shall not apply in relation to such an application by a surviving spouse.

(3) (a) On the death of a spouse who is entitled to a legal interest in a matrimonial home to which section 4 applied, the personal representative of that spouse shall not execute an assent in relation to that interest or otherwise transfer it to any person.

(b) If the surviving spouse has died without the legal interest in the matrimonial home concerned having vested in that spouse pursuant to subsection (1), that subsection shall apply to the personal representative of the surviving spouse as it applies to that spouse and, accordingly, upon compliance by that personal representative with that subsection, that interest shall, subject and without prejudice to the rights of any other person, vest in that personal representative for the purposes of the administration of that spouse's estate.

Question put and agreed to.

Mr. Taylor

I move that the Committee agree with the Seanad in amendment No. 12:

Section 9: In page 12, lines 43 to 46, deleted.

Question put and agreed to.

Mr. Taylor

I move that the Committee agree with the Seanad in amendment No. 13:

Section 10: In page 13, subsection (3), line 29, after "6,", "7," inserted.

Question put and agreed to.

Mr. Taylor

I move that the Committee agree with the Seanad in amendment No. 14:

Section 15: In page 15, between lines 20 and 21, the following subsection inserted:

"(5) Where section 4 applies to an interest in a matrimonial home and—

(a) the spouse in whose favour that section applies is adjudicated bankrupt under the Act, or

(b) that spouse becomes an arranging debtor and the interest in the home to which that spouse became entitled by virtue of such application vests in the Official Assignee,

the interest in the home to which that spouse became so entitled shall not be realised for distribution in accordance with the provisions of the Act in respect of any debts, obligations or other liabilities arising out of acts or omissions occurring before the application of subsection (2) or (3) of that section to the first-mentioned interest in the home and section 61 of the Act shall have effect accordingly."

Deputies will recall that on Report Stage in this House I introduced an amendment to ensure that a judgement mortgage could not be registered in respect of debts incurred prior to a section 4 vesting. This amendment is somewhat analogous. As the Bill stands if a benefiting spouse is bankrupt at the time the section 4 interest would have vested the joint ownership provisions of the Bill would not apply.

However, where the benefiting spouse is adjudicated bankrupt after that interest has vested in respect of debts which arose prior to that vesting his or her share in the matrimonial home would be available for distribution by the official assignee in accordance with the provisions of the Bankruptcy Act, 1988. This amendment is designed to prevent this happening since clearly it would be anomalous to have the benefiting spouse's interest realised for the benefit of creditors in respect of debts incurred prior to the section 4 vesting when the Bill provides elsewhere that a judgement mortgage cannot be registered against that spouse's interest in respect of any such debts.

Mr. Shatter

I have no problem with the Minister's amendment but I would like clarification on one point. It occurs to me that it would be possible for a spouse to benefit from section 4. A spouse may incur debts subsequent to the enactment of the legislation which may not be known to the original homeowning spouse; they may be incurred in the running of a business, from the impecunious use of money, drinking excessively or for a variety of reasons. A spouse who puts all of his or her money into the acquisition of a home could find himself or herself at the wrong end of either a judgment mortgage or a petition for bankruptcy which could affect an interest in the home. As I understand it in such circumstances if it could be established that the spouse behaved in a manner in which he or she intended their conduct to result in a loss of the family home section 5 of the Family Home Protection Act might be invoked with a view to getting a court order to have the home transferred back into the name of the original house-owning spouse. However, the problem with that section is that it appears from the decided cases that it requires a degree of intent; it must be established that there was an intention to behave in a manner that would lead to the loss of the family home or that the spouse was so reckless that objectively a court could assume that the spouse so intended.

In the absence of proof of such intent will the Minister clarify whether it is his intention that in those circumstances section 6 of the Bill would also be invoked? Under section 6 (5) (a) the courts are empowered, in determining whether to allow someone to retain an interest under section 4, to have regard to their conduct. Will the Minister confirm that the conduct referred to here is not essentially what is regarded as marital misconduct in terms of adultery or cruelty but that it extends to ill-advised and foolish financial conduct which places at risk the security of the family? If that is the Minister's intention, is there any danger that by confining this amendment to debts incurred before the Bill is implemented it may be interpreted that debts incurred subsequent to implementation of the Bill should not be included within the type of conduct to which the court should have regard under section 6?

I am sorry if this matter is a little complex but I am sure the Minister will understand the difficulty I am describing. It seems there is a possibility that within the next two to three years some spouses who acquire interests under this Bill might impose on their families financial difficulties which would not otherwise arise. As well as considering the benefits of the Bill, which are substantial for many people, we must also consider the difficulties and do what we can to ensure they do not arise.

Perhaps the Minister will clarify the reference to any debts, obligations or other liabilities arising out of acts or omissions occurring before the application of the sections. Is it envisaged that, for example, the debts in full must have been incurred before application of the relevant section? For example, if a person entered into a business contract that was not implemented until the sections were enacted and it was only at that stage they suffered a loss, what would be the timeframe that would apply? Would it be the date of the contract or the date when the loss was suffered? That is a relevant matter that needs to be clarified in the context of incorporating this provision into the Bill.

Mr. Taylor

The question related to whether, at the date the vesting took place, a debt was owing by the spouse to a third party. An existing contract that might after vesting took place, lead to a debt would not be applicable. The test would be whether moneys is owed by the spouse at that point. If the money is owed, it is a pre-vesting debt of a category that could not be taken into account on subsequent bankruptcy.

The intent of the section is to provide protection in respect of debts incurred by one of the spouses before vesting took place. It is not intended to deal with debts that would arise from whatever source after vesting took place. By and large, the position of joint tenancies in the matrimonial home would be the same as that for joint tenancies arising where the house was initially purchased in the names of both spouses. Just as that hazard applies in the case where the home was acquired by purchase in both names, it will also apply to post-purchase debts incurred by one party, whether through mortgage or bankruptcy. If a debt or a series of debts were incurred before vesting it would be clearly unfair to render it possible to bankrupt the person and for the assignee to have access to the joint vested interest in the matrimonial home. We are putting the position in relation to bankruptcy on a par with that relating to judgment mortgages.

Deputy Shatter asked whether section 6 could be invoked. It could be invoked, but it would have to be recognised that even if that was done and the application succeeded the revesting that would take place would be subject to other people's rights which had come into play in the meantime. Just as in the case of judgment mortgages and bankruptcy, if a series of legal events occurred after vesting, they would have priority over vesting. That is provided for in section 6.

Ms O'Donnell

I have no problem with this amendment. This is legislation about which it could be said that if you are not confused, you are not concentrating. As the Minister responded to Deputy Shatter's questions I became more confused. A question which occurred to me in relation to bankruptcy and judgment mortgages is whether the time is fast coming when to proffer a matrimonial home to a bank as security on any risky business venture will be at least politically incorrect. The whole thrust of this Bill relates to protection of the family home and to giving equal rights to the woman. Cases have come to my attention of constituents who found themselves left with a half share in the family home but the house had to be sold to pay off debts to a bank on foot of a judgement mortgage. Surely it is unwise of the bank to act as guarantor for a risky business venture. Perhaps banks and institutions should review their practices in terms of accepting matrimonial homes as security in the future.

Mr. Taylor

I am not sure whether Deputy O'Donnell is suggesting that there should be a law to the effect that a husband or wife would be prohibited from raising money on their matrimonial home. Many spouses would take grave exception to such a provision. A husband or wife might find it essential to raise money on the security of their home to enable them go into business and secure a livelihood for themselves. Such persons would not welcome a law that prohibited them from using their property in that way.

Ms O'Donnell

I was not suggesting the introduction of such a law; I was referring to bank practice.

Mr. Taylor

I understand the point the Deputy is making, but I do not think that an extension of the law along those lines is under immediate contemplation.

Question put and agreed to.

Mr. Taylor

I move that the Committee agree with the Seanad in amendment No. 15:

Section 18: In page 18, subsection (7) (a) (ii), line 27, after "divorce,", "not or" inserted.

Question put and agreed to.

Mr. Taylor

I move that the Committee agree with the Seanad in amendment No. 16:

Section 21: In page 20, between lines 10 and 11, the following subsection inserted:

"(5) Section 18 (which deals with jurisdiction of the court) of the Act of 1964 is hereby amended—

(a) by the insertion in subsection (1), after ‘Circuit Court', of ‘and, in relation to a matrimonial home (within the meaning of the Matrimonial Home Act, 1993) whose rateable valuation is not more than £20, the District Court', and

(b) by the substitution of the following subsection for subsection (3):

‘(3) The jurisdiction conferred on a court by this section to hear and determine any matter under this Act in relation to land may be exercised—

(a) in the case of the Circuit Court, by the judge of the circuit, and

(b) in the case of the District Court, by the judge assigned to the district court district,

in which the land or any part of the land is situated.'.".

This is a technical amendment the purpose of which is to give the District Court jurisdiction in Land Registry matters in relation to matrimonial homes whose rateable valuation is not more than £20.

Question put and agreed to.

Mr. Taylor

I move that the Committee agree with the Seanad in amendment No. 17:

Section 23: In page 20, subsection (1), line 25, "the" deleted and "a" substituted.

Mr. Shatter

When the Bill was passed by this House a number of matters had not been properly addressed. I welcome the opportunity afforded to us today to address these matters by way of amendments from the Seanad. As a result, the Bill has been improved.

I was very anxious that the House would properly address the position — it may be an exceptional instance but I am sure it will arise in practice — of husbands or wives who murder their spouses. Under the Bill, as amended, a person convicted in a criminal trial of murdering their spouse will not benefit and there will not be any onus on either the personal representatives of the deceased spouse or the surviving children to go to court to disentitle such a person from benefiting.

I am glad, too, that we have finally sorted out the provisions which ensure that, under the legislation, a person must first get independent legal advice before waiving their rights. Whatever advice is necessary should be available to people who are under pressure to waive their rights and who do not have the wherewithal to hire a lawyer though I cannot imagine that it would cost a huge sum of money to get advice on such an issue. It is a simple matter and a lawyer should be able to give advice in a simple and easy way——

Mr. Taylor

They should be, but one never knows.

Mr. Shatter

I ask the Minister to ensure that a spouse who requires legal advice will gain access to the Government law centres where they will get such advice.

I regret that wives who were deserted or abandoned by their husbands prior to 25 June 1993 and who still reside in the family home which is owned by their husbands will not benefit under this legislation. I do not understand why the legislation could not have been framed in such a manner as to provide the same protection for those wives as it will provide for wives who were living with their spouses as and from 25 June 1993. In the context of enacting a major piece of legislation which falls under the bailiwick of equality and law reform, it is regrettable that we have created a class of wives who are less equal than others. The Supreme Court may address that issue at some stage. We do not know whether the President will refer this legislation to the Supreme Court for determination as to its constitutionality. I am not suggesting that the legislation should be deemed unconstitutional — I am concerned about the constitutional impact of the different treatment of wives in different families based on the creation of an artificial cut off date. If there is a constitutional difficulty with the legisation it may derive more from the artificial cut off date than from any interference with private property rights, the old reason given as to why this type of legislation could not be enacted.

It is probable that at some stage in the future some husband or wife will challenge the constitutionality of the legislation. Even though a group of wives will be excluded from the provisions of the Bill, I would not be happy if as a result of ordinary litigation this Bill was put into cold storage for anything up to 18 months while the court case wound its way through the High Court and the Supreme Court. If the President has any doubts as to the constitutionality of the legislation I would much prefer that matter to be addressed by the referral to the Supreme Court than to leave it to be litigated through the courts, thus taking a much longer time.

Having criticised the Minister during the debate for different reasons, I should say that he has been flexible in taking on board amendments from the Opposition. Of course members of the Opposition always wish Ministers to take on board all their amendments. I believe the Minister has taken on board more amendments than some of his colleagues would have done in similar circumstances. The debates in both Houses of the Oireachtas have ensured that we have a better Bill than the Bill originally published. I think the Minister will acknowledge that we have all made a contribution to improving the Bill. Similar difficulties are experienced in regard to other legislation emanating from the Minister's Department. It will take much longer to put in place all of the badly needed legislation which should be put in place to enable the Government to keep its promise to hold the divorce referendum next autumn.

Ms O'Donnell rose.

Acting Chairman (Mr. Kirk)

We are out of order at this stage. I will have to wind up the debate.

Question put and agreed to.

Amendments reported and agreed to.