Dáil Éireann díospóireacht -
Tuesday, 12 Apr 1994

Vol. 441 No. 1

Private Members' Business. - Family Law (Property) Bill, 1994: Second Stage (Resumed).

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

Miss Harney

On behalf of the Progressive Democrats I thank Fine Gael, Democratic Left and the Independent Deputies for the responsible and fair approach they adopted to the Bill. It is important, particularly in the context of the huge Government majority which causes concern not just to Opposition Deputies but in the country generally because of the manner in which the Government has used its majority and sought to collapse this Bill on the last occasion. I am pleased there is such unity of purpose among the Opposition parties and it is important that that would continue.

The Progressive Democrats put forward this Bill in order to give legal recognition to the unpaid work of women in the main, and in some cases, men, in the home. It is an honest attempt by us to recognise the non-financial contributions which many women in particular make to the home as homemakers and child rearers. The rejection of the Bill by the Government shows it is not really committed to equality, despite the words in the Programme for Government, or to giving statutory recognition to the aspirations in the Constitution as far as women are concerned. The Government's treatment of the Bill raises serious questions about its capacity to handle the divorce referendum. How could it dismiss out of hand a Bill that was welcomed by the Council for the Status of Women and several other organisations? The council described it as "a laudable attempt to give statutory recognition to the unpaid work of women in the home." They went on to say "any attempt to recognise in law the contribution made by women in the home through their unpaid work must be welcome. It is crucial, in our view, that this issue be dealt with before the Government's proposed referendum on divorce later this year". Despite those words from the council, which is the umbrella organisation for over 100 organisations, we all know what the Government sought to do; I am the third speaker from my party and the fifth Opposition speaker to contribute to this debate.

The delay in the allocation of £750,000 which the Minister for Finance told us about on budget day to marriage counselling services is also regrettable. I have been approached on behalf of the Marriage Counselling Service — a body which is not affiliated to the Catholic Church. That organisation is in jeopardy because of the failure of the Minister for Equality and Law Reform to make a grant available to it out of that £750,000. I appeal to him to make the allocation as soon as possible.

I heard the Minister of State, Deputy Burton, speak on radio this morning about the Government's commitment to the family. This is the Year of the Family and if an allocation is not made to an organisation which is trying so hard under very difficult circumstances to help those whose marriages are in difficulty it raises serious questions about the Government's judgment and its handling of the divorce referendum.

I do not want to see the divorce referendum diverted but I must question the ethics of allocating taxpayers' money to one side of an argument in the context of the referendum. I appeal to the Minister to give this serious consideration, as I have tried to do since I was approached by interested people. I am not saying public money should be allocated to a particular church but there will be organisations campaigning on both sides and all the public money should not necessarily be spent by the Government. Given the issue and the sensitivities involved, we and the Government must deal with the allocation of resources in a sensible, sensitive and realistic way. I would hate to think issues relating to the allocation of resources for a campaign would grab the headlines, get all the attention and divert interest from the main issue, which is recognising in law those whose marriages have broken down and allowing them to remarry if that is their wish.

I want to deal with the matters raised by the Tánaiste in a fair, honest and reasonable fashion but I must express how disappointed not only I but my party were at what he had to say — not just his out of hand dismissal of the Bill but the manner in which he chose to deal with the issue involved, his criticism of my party, his description of the Bill as an amateur effort written on the back of an envelope and his questioning of whether we were playing politics with the divorce issue. I have assured the Minister for Equality and Law Reform privately, and will do so publicly, that as far as the divorce issue is concerned, he will receive nothing but the fullest co-operation from my party. We co-operated fully on the last occasion with the then Coalition Government, in contrast to the main Opposition party at the time, and campaigned as vigorously as we could within our available resources. We had just established our party and had four Deputies; nonetheless we worked as hard as we could to ensure the success of the referendum. We helped the Government of the day and it would be my intention to do so on this occasion. This issue is far too important for party politics.

I regret the tone of the Tánaiste's remarks and it is a pity that the Minister for Equality and Law Reform was not present on that occasion because he has complimented me and my party on our co-operative approach to this issue. The Tánaiste suggested there were serious defects in the Bill. I have assessed each of his criticisms carefully and have concluded they are wrong and without foundation in fact or law. Taking the first point he made he said:

It could be argued that the Bill, as it stands would conflict with the test laid down by the Supreme Court on the Matrimonial Home Bill regarding disproportionate interference with the rights of families to make decisions having regard to Article 41 of the Constitution.

This is a groundless criticism. The Bill cannot amount to disproportionate interference since all it allows is for a spouse, in the last analysis, to agree before a court that as a matter of equity, the non-financial contribution to the family home gives rise to an entitlement to beneficial ownership therein. Not only was this described as a desirable objective by the Chief Justice in the case of L & L but in the judgment delivered in the recent Matrimonial Home Bill case, the Supreme Court said:

The court accepts, as it has indicated, the advantages of encouraging by any appropriate means joint ownership in family homes as being conducive to the dignity, reassurance and independence of each of the spouses and to the partnership concept of marriage which is fundamental to it. It is not, however, satisfied that the potentially indiscriminate alteration of what may be joint decisions validly made within the authority of the family concerning the question of the ownership of the family home could reasonably be justified even by such an important aspect as the common good.

It is clear from all the available dicta of the Supreme Court on the issue that the court considers that legislation to permit a spouse to establish a right in equity to a share in the family home is not merely desirable or constitutional but clearly a value which the Constitution encourages and welcomes.

The Tánaiste went on to say:

Before any interest can be established, an expensive court action would be necessary under the provisions of the Bill. The interest would take time to establish and, in a situation where one is talking mainly about contributions which are not monetary in nature, the precise share in the home to which a spouse is likely to be entitled may well be uncertain.

In this criticism the Tánaiste ignores present day legal realities. It is equally true of financial contributions giving rise to an equitable share because, unless agreed, the interest can be established only by "an expensive court action", to quote the Tánaiste. This is no reason to discriminate between financial and non-financial contributions. Moreover, since the Government has abandoned the idea of conferring a specific defined share on spouses as of right, by legislation a formula which reflects the contribution made by the spouse who stays at home, the homemaker, will necessarily be general in its terms and flexible in its nature. Such uncertainty is inevitable unless a rigid formula can be applied by statute. This is not a reason that a right should not be created.

The Tánaiste said also that the Judicial Separation and Family Law Reform Act, 1989 and the Government's family law Bills contain provisions in respect of property adjustment orders but, as is obvious from these measures, one is talking only about situations where a marriage has broken down. There are many circumstances in which a spouse could wish to establish an equity based on non-financial contributions to the family home other than cases of marriage breakdown. One such case is that of succession rights. In such a case, a spouse might wish to establish a share in the family home which was held in her husband's name before asserting her statutory right to a legal share in the remainder of her spouse's estate. Moreover there will be other cases where a spouse will wish to establish her equitable right in the family home to defeat competing claims, possibly by other members of the family who have made cash contributions to the family home, or to defeat subsequent claims by persons claiming equitable rights in the family home such as third parties not related to the spouse. In all these cases, the present law is wholly inadequate and makes no provision for the protection of the interest of the wife who stays at home.

The Tánaiste's statement that "this Bill would only be of relevance where the spouses could not agree on such ownership" is incorrect. A spouse might have died, a spouse might be disabled due to mental illness or whatever or there might be a dispute between one of the spouses and a third party. To suggest that any action to establish such a right would impair the relationship between the spouses in such cases is completely misconceived. Likewise, when examined the Tánaiste's criticism of section 4 falls apart completely. He distinguishes between a house which was purchased by a mortgage paid out of the earnings of one of the spouses during the marriage and a house which was given by way of gift or inheritance to one of the spouses either before or during the marriage. This is the precise distinction which the Supreme Court drew in rejecting the Matrimonial Home Bill. The Progressive Democrats Bill makes such a distinction in order to avoid the unconstitutionality which threw the Government's Bill into the constitutional wastepaper basket.

The Tánaiste also claimed that section 4 bristles with anomalies. When we look to what these anomalies might be we find that he considers it to be an anomaly that a right in equity might exist in relation to a home on which repayments were made but might not exist in respect of a home which one of the spouses had always owned outright. It is somewhat surprising that he cannot see that this distinction is of fundamental importance in ensuring the constitutionality of this measure, having regard to the Matrimonial Home Bill. He criticised section 4 because it was vague. The section is not vague but is of a general and flexible application.

One of the more hollow criticisms offered by the Tánaiste is that section 4 would allow the court to make any number of subsequent orders. That applies equally to financial contributions as there is nothing finite about the number of orders that the court could make under section 12 of the 1957 Act in respect of financial contributions. There is no good reason to cap the number of applications that could be made in respect of non-financial contributions in circumstances where there is no such cap on financial contributions. The idea that a spouse would return regularly to the court to get a top up is entirely foolish. The Tánaiste must know that equivalent rights in respect of financial contributions have never given rise to topping up litigation. People are not as foolish as he apparently takes them to be. He also criticised the Bill because it "placed a premium on marriages of a particular duration". In the context of non-financial contributions, nothing could be more sensible than to distinguish between a marriage of one week's duration and one of 20 years duration in determining whether an equitable share in the family home should exist as a result of a non-financial contribution. Is he seriously saying that a marriage of one week and the non-financial contribution of one week is equivalent to the non-financial contribution of 20, 25 or 30 years? It is hard to see that he was acting in good faith in framing this criticism.

The Tánaiste also attacked the proposal to cap non-financial contributions at 50 per cent and pointed out that there is no such cap on financial contributions. If the courts are to be given jurisdiction to create an equitable interest to reflect the non-financial contributions of spouses who stay at home it is surely more desirable that there should be some upper limit on such interests. Otherwise, the spouse making financial contributions might argue that the effect of the Bill was to deprive him or her of the benefit of his or her financial contributions. If the Tánaiste believes that a 50 per cent cap is unreasonable in this context, will he suggest the percentage he finds acceptable?

Claims that the creation of a right to establish equitable ownership based on non-financial contributions could give rise to conveyancing problems are hollow. A similar jurisdiction in respect of financial contributions has not complicated conveyancing matters, but on the Tánaiste's arguments it has an equal potential to do so. Coupled with the obligation to obtain a spouse's consent under the Family Home Protection Act, 1976, the provisions of the Progressive Democrats' Bill would not complicate conveyancing in the slightest. There is no basis for believing that the right to establish equitable ownership in respect of non-financial contributions is any more complex from a conveyancing point of view than a similar right in respect of financial contributions. A moment's reflection might have led the Tánaiste to see how empty was that criticism.

Moreover, his reference to the proposal in the Government's Family Law Bill to repeal and re-enact in extended form, section 12 of the Married Women's Status Act, 1957, is irrelevant. If one measure becomes law before the other, the appropriate amendment can be made in either. The entitlements of children of deceased spouses to recover moneys in respect of non-financial contributions by the child's parents could be dealt with either by leaving the provisions of this Bill as they are and allowing non-financial contributions to be dealt with in the same way as financial contributions, or alternatively, by providing that the provisions relating to non-financial contributions could only be actionable as the personal suit of the spouse affected. Either of the adjustments could easily be made if the Government's Family Law Bill becomes law.

The Tánaiste also criticised the Bill on the basis that the term "non-financial contribution" was not adequately defined. If he felt that the Bill would be improved by such a definition we would be glad to consider any such proposed definition. On reflection he might well consider that it is best not to attempt to define the term "non-financial contribution" as it is virtually impossible to lay down a formula in law which would be both just and effective.

Unlike the Tánaiste we have carefully considered each and every one of his criticisms. They are all without substance and were not seriously offered. If anything was written on the back of an envelope, as he suggested, it was his series of criticisms of this Bill.

We can appreciate, because the Government complained that it had inadequate notice of the Bill, that it did not have time to elaborate its criticism, but it is abundantly clear that every criticism offered by the Tánaiste is hollow, specious and insubstantial when examined. I would have expected, given the commitment in the Programme for Government to accept Bills of a non-contentious nature and the request of the Minister for Equality and Law Reform to my party colleague, Deputy Michael McDowell, who was involved in drafting this Bill that, at least, the Government would have given it a Second Reading and allowed it go to Committee. That would have shown that the Government was at least interested in teasing out the issues. I regret that a great deal of notice was not given, but my party was faced with the choice of abandoning the possibility of having a Bill such as this and taking the road of the divorce referendum or taking the opportunity now. We get an opportunity to put forward such a Bill only once every six parliamentary weeks when there are motions or every ten weeks when there are not. We would not have had an opportunity before the Dáil adjourns for the elections to put this measure again. I regret that there was not more time.

Given the resources at the disposal of the Government the lack of time was not a good enough reason for the Tánaiste, the Labour Party and the Government to adopt such an attitude. Unless they rethink their attitude to this proposal there is a serious danger that the upcoming divorce referendum will be roundly defeated. Many women and the organisations that represent them, which have been in contact with me, have expressed alarm at the attitude adopted by the Government to this measure.

My colleague, Deputy Keogh, drew a contrast between the attitude adopted by the Minister for Justice who is due to speak next and that adopted by the Tánaiste. I have always found the Minister for Justice to be both reasonable and fair; she will always accept good amendments from the Opposition and does not make an issue out of this. I admire her for that. It may be due to the fact that she is not paranoid about her own legislation and does not insist that she is always right. That is the approach we must adopt to legislation of this kind which is sensitive, urgent and important. It is legislation that all of us should like to see on the Statute Book as quickly as possible.

Minister for Justice (Mrs. Geoghegan-Quinn)

This Government has shown itself quite prepared to support Private Members' Bills when it is satisfied that the proposals are in the public interest and will achieve social good. I regret that this Bill does not sufficiently meet those criteria and, as the House will be already aware, the Government is opposing this measure. In fairness to the proposers of the Bill and to the general public there is an obligation to explain why the Government is adopting this stance on this occasion and I hope my contribution will succeed in doing this.

All Members of this House were disappointed that the Government's proposals to provide for automatic joint ownership of the family home were found to be unconstitutional.

The Supreme Court decision went to the heart of what was being proposed and it was simply not an option to seek to adjust the provisions of that Bill to try to render it constitutional. That being said, the Government has made it clear that we will examine carefully the situation in the aftermath of the Supreme Court judgment and if workable proposals emerge for legislative change in this area we will have no hesitation in bringing them forward as quickly as possible.

While I appreciate what this Bill attempts to do, the reality is that it is hard to see it having any widespread practical advantage. To suggest that it goes a long way to achieving what the Government's proposals in this area attempted to achieve would be wide of the mark. There is a world of difference between providing for automatic joint ownership of the family home and, instead, providing for a procedure whereby people can involve themselves in what might prove to be expensive and corrosive litigation to establish their respective shares in the family home.

Without wishing to pre-empt the Government's consideration of what might be possible in the aftermath of the Supreme Court decision I suspect that workable proposals will lie primarily in taking steps to encourage joint ownership through social policies and that the solution which this Bill proposes, leaving aside inherent difficulties which may arise with the detail of it, is in reality no solution at all to what we are seeking to address. It is unfortunate that some supporters of this Bill have within and outside the House made claims about what the Bill would achieve which do not stand up to examination. It is unfortunate also that some appear to have misunderstood the reason the Government cannot support or accept this measure.

Let us be clear about it. This measure, despite the good intention of the proposers, is not something which will secure practical benefit for the vast majority of dependent spouses. If it was of real benefit, I and my colleagues in Government would adopt a different approach to it. Our opposition is grounded in reason, not on any desire to deprive dependent spouses of valuable rights — to do so would be perverse.

It has been asserted wrongly that the Bill for the first time proposes to have the non-financial contributions of a spouse to the family home recognised. This overlooks the provisions of the Judicial Separation and Family Law Reform Act, 1989, which specifically oblige the courts when deciding on financial and property arrangements in the case of separation, to have regard to the contributions which each of the spouses has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home and caring for the family. In other words, in separation cases where the court has to decide on what to do with the family home it must have specific regard to the contribution made by a spouse who stays at home looking after the home and, where relevant, caring for the children.

What this Bill seeks to do is to allow the court to take into account the value of such contributions where judicial separation is not being sought. Is it realistic to suggest that proceedings for such a declaration are likely to be initiated in practice on any significant scale other than in circumstances where the marriage has in fact broken down? Is it likely that in circumstances where a couple dispute the ownership of the family home and one of them resorts to the courts to have the question established that matters will rest at that and that neither what led to the action being initiated nor its progress through the courts will have any further implications for the marriage?

The reality is that, while we would all accept that joint ownership of the family home is socially desirable in the context of its giving recognition to the nature of marriage as a partnership, in practice the need to resolve a dispute between spouses as to the respective shares in the family home in terms of the protection of the interest of both spouses generally arises only where the marriage breaks down. The law already caters for that situation and that is being built upon in the Family Law Bill which is currently before this House.

I intend no disservice or discourtesy to the drafters of this Bill when I say that it must be a matter of regret to all those who genuinely wish to see the difficult problems where marriages break down addressed that the debate on this measure has been used by some to cast doubt on the genuineness of the Government's intentions in relation to a divorce referendum. To suggest that this Bill has any relevance to the situations where marriages break down is wrong and it is particularly unfortunate when those who proclaim strongly their wish for divorce to be introduced proceed, however inadvertently, to confuse the public debate by seeking to make a connection between this Bill and divorce. The Government has already made it clear that before putting the issue of divorce before the people in a referendum we must have a modern and effective corpus of family law and the Family Law Bill at present before the House is a measure of that determination.

Given the very limited scope — albeit understandable — of this Bill — the enactment of such a measure would carry with it the danger of being used by those who oppose the introduction of divorce as a distraction from the real issues which must be addressed in the debate and that they would concentrate on its limited nature in an attempt to minimise the protection which the law provides where marriages break down. To make that point is not in any way intended to detract from the genuineness of the concerns which many people have about the introduction of divorce — concerns which are being addressed as best we can through a wide range of initiatives in relation to marriage and the breakdown of marriage.

As well as action in the legislative field further initiatives have been taken in areas such as the provision of civil legal aid and mediation services.

In response to the points raised by Deputy Harney, the Minister for Equality and Law Reform, Deputy Taylor, has assured me that his Department has been in touch with the agencies and groups who provide mediation services. Moneys have been allocated for the expansion of these services. As soon as all the proposals have been submitted to the Minister and his officials he will make the allocations. We hope that these will be made quickly, in relation to my specific area of responsibility the House will be aware that the Law Reform Commission recently published a discussion document on family courts and I look forward to receiving their final report as soon as possible.

The Government White Paper on Marital Breakdown recognised that, while the vast majority of people in Ireland who get married go on to live together in life-long unions, there is also the unfortunate reality that a minority — and by all accounts an increasing one — of those who marry have their hopes and expectations of a permanent union dashed through the breakdown of their marriages. It was in the context of addressing that reality that the Programme for a Partnership Government included a commitment to put the question of divorce before the people in a referendum. Lest there be even a scintilla of doubt about it, I am happy to use this occasion to make it clear that the Government will bring forward its proposals in this matter without delay in the light of the progress of the various related matters under way. The Government will spare no effort to explain fully to the people at the time why the measure it proposes should be supported by the people.

The progress of that debate will not be assisted in any way by a failure to recognise that the question of appropriate responses to marital breakdown is one on which people have strongly held and often opposing views and I am hopeful that it will prove possible for all of us on all sides of this House to adopt a constructive approach in an effort to minimise needless divisiveness in the community.

In this regard it is only right to refer to my experience of the generally constructive approach which has been taken by Members on all sides to the array of legislative measures which I have been able to introduce since I became Minister for Justice. It is in this context that I regret it did not prove possible on this occasion to accept the Private Members' Bill which was put forward but I hope it will be recognised that this did not arise from any knee-jerk reaction on the part of the Government but from a genuine belief on our part that the balance of the public good did not lie with the acceptance of such a measure at this time.

To return to the detail of the Bill, I would be concerned that, even in the very limited cases where it might be resorted to, it may not be fully effective in what it sets out to achieve and, in particular, whether it contains sufficient guidance for the courts in its concluding on the respective shares of the family home.

I would be concerned too about any possible implications such an approach might have in terms of the subsequent division of property if the court, having decided the matter outside the context of separation proceedings, was subsequently called upon to do so in separation proceedings. The share which would be decided on in separation proceedings for non-owning spouses would in many cases be greater than that in proceedings under the Bill and I wonder if there would be a danger in practice that the legal profession would think it best to advise their clients that there may be a danger that the outcome of proceedings for a declaration might in some way operate in practice to prejudice their position in subsequent separation proceedings. I know that that certainty would not be the intention of the proposers of the Bill but when looking at the Bill this point struck me. I would put it no stronger than saying if a measure along the lines of the Bill were to be proceeded with in future it is something which might need to be closely examined.

I make these points not to be per-nickety about someone else's legislative efforts but simply to raise issues which would call for further examination. I assure the House that in considering what options might be open to it in this area the Government will have regard to any constructive points made during this debate.

Ms O'Donnell

I wish to share my time with Deputy Durkan. I welcome the opportunity to contribute tonight. After the initial shock of the Supreme Court decision to rule unconstitutional the Matrimonial Home Bill I felt that, even within the terms of the Supreme Court judgment, there was room to revisit the principle of joint ownership of the matrimonial home. The Supreme Court was right to reject this Bill because, as framed, it was too expansive. It sought, in a mandatory way, to impose joint tenancy on all sorts of couples regardless of any arrangements they had come to between themselves and was a disproportionate intervention into the consititutional right and moral authority of the family. The decision was surprising legally but not totally unpredictable.

From the day the decision was announced I urged on the Minister for Equality and Law Reform that there was still room to revisit the principle in question and, in some more focused manner, to go back to the principle that was endorsed by all sides of the House when debating the Matrimonial Home Bill, and recommended 20 years ago by the First Commission on the Status of Women and supported by the women's movement since then, that marriage is a partnership and that joint ownership of the family home is a recognition of that partnership with particular reference to the non-financial contributions of the spouse who does not work outside the home.

I could not believe that, after a short think about it, the Government decided to do nothing about the Supreme Court decision, that it was running away from a principle it had promoted, taking the bottom line of the Supreme Court decision and not the spirit of it which clearly recognised the validity and goodness of the principle but decided that the terms of the Matrimonial Home Bill were too mandatory. The Minister said he would give careful consideration to revisiting the principle. However, I do not think we have the time any more. We have had 20 years of sympathetic and considerate analysis of this issue. Women are sick and tired of leisurely consideration by Ministers of issues of women's rights and the lethargy of Ministers in progessing women's rights issues, and this issue is long in the tooth.

Deputy Keogh's Bill was presented as a modest proposal. It is not all that modest. It is short and to the point and addresses what we wanted to address in the Matrimonial Home Bill which was that the court decided in the case of L v L that it was not prepared to uphold the principle of extending an equitable right in the family home to the spouse who had not contributed financially to the property. This Bill focuses on that fault in the law and tries to reverse the decision in the case of L v L. In that case it was stated it was a desirable objective. The unanimous view of the Supreme Court was that it was a desirable objective that was worth pursuing but that it was not something the court would be properly placed to do and that it was a matter for the Oireachtas. The Oireachtas addressed the matter but got it wrong, and it is shameful for the Government to run away from that principle at the first obstacle.

We were horrified by the reaction of the Tánaiste to our proposal coming from a Labour Minister who in the past had quite a good reputation on women's rights. For many years the Labour Party was strong in vocalising issues of interest to women activists. I was, therefore, doubly horrified that the Tánaiste could show no political grace in the face of a worthy Bill which has been supported outside this House by women's groups. The points made by the Tánaiste showed ignorance of the law and lack of maturity in dealing with an Opposition party. It was a knee-jerk reaction.

Although Minister Geoghegan-Quinn repeated the same wrong law, she did it with good grace. I have discussed this matter with constitutional lawyers and with judges who were disappointed with the Supreme Court judgment. Many of them had suggested to me that at least the decision in the case of L v L could be reversed and some presumption of joint ownership injected into our law in stable marriages, the term the Minister for Equality and Law Reform used in his remarks on our Bill. I said at the time that it was disappointing that the Government was running away from this principle. It is disingenuous and dishonest to say that it was never very important and would not affect the divorce referendum.

I note the Tánaiste also said that the Government did not propose to accept the Bill because "it would have no practical effect on the law in this area which already contains comprehensive provisions for distribution of ownership of family property between spouses based on non-financial considerations such as working in the home". Why then was the Matrimonial Home Bill produced and put through this House with such great aplomb? It is disingenuous to deny in a revisionist way a principle which this Government promoted and all Members of the House supported. A problem still exists. Apart from the usual economic dependence and resultant depression, women working in the home still do not have an automatic right to, or even a presumption of, joint ownership in the bricks and mortar within which they toil. If men were doing the housework and were the primary carers of children for even one generation we would not be here discussing the issue of joint ownership of the family home. For generations women have carried out that work and many of them now also work outside the home. Those of us who go out to work have to pay somebody to fill our role in the home and are aware of the expense involved. Home-makers are the primary carers of children and the elderly, they are the housekeepers, the cleaners, the gardeners and those who pick up all the toys. It is back-breaking work and women do not complain sufficiently. If men were doing that work we would not be here talking about giving sympathetic consideration to the principle of joint ownership of the family home. Women have not shouted loud enough and, regrettably, have not had adequate support from men in the conflict and duality of their lives over the years.

Women's work is not getting easier. For some women the opportunity to be a home-maker is a great privilege as many women have to continue working — if they are lucky enough to have work — in order to pay a mortgage. Others give up work outside the home to care for their children and it is regrettable that they should feel disadvantaged because they do not contribute to the family home. They believe they do not have a stake in the partnership. In general, women marry around child bearing age and frequently compromise their working careers by giving up work outside the home to care for their children.

This matter relates to the economic dependence of women and anyone who listens to the phone-in programmes on radio will be familiar with the stories of depressed women working in the home who believe they do not have economic independence or status. Much of this relates not only to the belief that they do not have a stake in the family home, but also the belief that they are second class citizens. A great deal of work needs to be done in the area of equality. There are so many proposals in the report of the Second Commission on the Status of Women which need to be implemented that the Minister will have to pass some on to his successor. Will the Minister examine some of those proposals? This is a simple issue which could change the status of women working in the home.

I disagree with the comments of the Minister for Justice, Deputy Geoghegan-Quinn, in regard to the Judicial Separation Act. The making of property adjustment orders under that legislation refers only to marital breakdown whereas this Bill provides that, if a husband dies, a wife can apply to increase her share in the estate. Under her succession rights she would be entitled to either one-third or one-half of the estate, but it would be great if before that subdivision took place she was entitled to joint ownership in the family home. Women who work in the home do not earn any money and work like dogs day after day taking care of everybody but themselves. In many cases they are isolated while their husbands go out to work, live independent lives and have money to spend. Mean husbands are very common and women married to such men do not even have the psychological feeling of owning half the family home.

We should not be obsessed with marriage breakdown. Even in stable marriages it would be great for women to know that even though they are working hard they at least own half the house. They do not have that security at present and it seriously affects their confidence, an issue which has not been taken on board by the Government.

I am surprised that none of the female Members of the Labour Part contributed to this debate. They have not been to the fore on equality issues and have not contributed to many debates on such issues. Perhaps they are mortified, as they should be, if they intend voting against a Bill which has its heart in the right place. It may not be perfect but we do not have the resources of the Government with its paid legal advisers, the staff of the Department and a plethora of programme managers and advisers. We carry out all the work ourselves. It was most ungracious of the Tánaiste and Minister for Foreign Affairs to say that this Bill was written on the back of an envelope. He does not have a right to mention the backs of envelopes when one considers the night of the long fourchette.

Miss Harney

That was not even written on an envelope.

Ms O'Donnell

It was probably written on the back of a packet of cigarettes in a bar in Europe. It is typical of the Tánaiste and the Minister for Foreign Affairs to be tetchy and take personally any criticism directed at the Government. I note that Fianna Fáil Ministers take criticism very well, they are probably used to it after many years of Opposition criticism. The Tánaiste and Minister for Foreign Affairs was ungracious, arrogant and acted like a real boot boy. It is disappointing that he should take that approach to what is valid and reasonable legislation. It is certainly better than nothing. The Minister for Equality and Law Reform was quietly considering and being sympathetic to this issue, but that will not get us anywhere. Time is running out. We will soon have the summer recess. Who will put forward this principle? It will not be dealt with before the divorce referendum. This, together with the constitutional challenge on the Judicial Separation Bill, bodes ill for the success of the entire package.

I have pointed out the defects of the Family Law Bill which in many respects is sailing on the same rocky and stormy seas as the Matrimonial Home Bill. I sometimes wonder about the quality of work put into legislation going through the House. It was dishonest of the Minister for Justice, Deputy Geoghegan-Quinn, to say that these are separate matters. This Bill is part of the package which contains divorce legislation, the Family Law Bill and so on. They all relate to sorting out domestic politics within the home and deal with how men and women organise their lives in stable as well as unstable marriages. We should not be obsessed with the breakdown of marriage. Stable marriages and those coasting along also need support.

It is commendable that an allocation has been made to mediation and legal aid services. If divorce is introduced here — as I hope it will — there will be a flood of applications to avail of it. Thousands of people are awaiting the opportunity to reorganise their lives in a civilised way to allow them to sort out the difficulties with which they have had to deal in the legislative limbo because nobody would face up to the divorce issue. There was great disappointment on the last occasion when the divorce referendum was lost even though there was more optimism and pro-active enthusiasm for the issue at that time. Much work needs to be done in that area and I look forward to the initiative which the Minister for Equality and Law Reform and the Government will make to convince our people that the way forward is to allow people to remarry. I criticised the Family Law Bill and said it does not sufficiently deal with the emotional maintenance of children — it is steeped in the adversarial style of separation and divorce characteristic of the situation in the United Kingdom. It is not enthusiastic about promoting joint custody orders and goes along with jaded notions which have failed in the United Kingdom. It is unimaginative and requires courage and research to study how other jurisdictions have dealt with child custody and maintenance. We will table amendments to the Family Law Bill in relation to joint custody orders.

Mr. Durkan

I thank my colleague for allowing me the opportunity to contribute to the debate and I congratulate the Progressive Democrats on introducing the Bill. This is a timely focus on an issue which has faced us for some time and which ultimately must be dealt with. I was disappointed by the Tánaiste's attitude when he accused the Opposition of playing politics with this issue. The Opposition is always accused of that if it seeks to be progressive or helpful. They are the whipping boys or whipping girls and blamed when something goes wrong but the Government appeals to the Opposition for assistance if it loses out on £1 billion or £2 billion in Europe or elsewhere, seeks support for Maastricht or on a national issue. It does not appeal to the Opposition on matters that are part and parcel of the daily operations of the Government as in the case of appointing advisers.

Miss Quill

The Deputy is right.

Ms O'Donnell

Or the Joint Declaration?

Mr. Durkan

It rings hollow that the Government should accuse the Opposition of playing politics with an emotive issue requiring a great deal of attention, compassion and effort by everybody. The Opposition is being progressive and helpful considering that it does not have the research and back-up resources of Government. This legislation will alert the Government to the fact that the Opposition and the public are concerned about its lethargy and will. I hope, galvanise it into action.

The recent soundings in this area seem to indicate that the Government considers itself unpopular. It may consider that now is not a good time to introduce legislation in this area. It may have cold feet in this regard and perhaps that is why it criticised the Opposition and suggested it should remain silent and not raise issues with which it promised to deal. Those issues should be identified as being on the agenda already and the Opposition is entitled to ask when, how and where this issue will be dealt with.

If divorce is introduced it will not be mandatory but it is required to meet the needs of a changing society. There is no sense in revisionism. We must recognise that society is changing and the Government should have courage and give leadership on an issue such as this. If the Government bungles so be it. There are many cases of marriage breakdown involving repeated violence. All Deputies will have dealt with such cases. I have dealt with scores of them. In 99 per cent of cases women are the victims and it is very difficult to say to a woman in such circumstances that she is married for better or worse and must bear with the situation; that is not a compassionate attitude. People say that if divorce is introduced it will encourage second and third relationships which will also fail. That argument does not stand up. If that argument is applied people should not be allowed to marry in the first instance. People are not perfect. Only one person was perfect and he was crucified.

Ms O'Donnell

What about Dick Spring?

Miss Harney

He has not been crucified yet.

Ms O'Donnell

He is the great Messiah.

Mr. Durkan

We do not have the right to judge people trapped in that situation. There is no point in saying that when divorce was introduced in other countries it led to serious problems — those problems existed already. It is not true that because one marriage failed a future marriage will fail. Many people are involved in second and third relationships here which do not have a legal imprimatur. Those associations are illegal in the eyes of the State. Naturally, no church encourages divorce and people do their best to make their marriages work.

In the event of relations breaking down why should we sit in judgment and tell those people who have not been perfect that they have failed and must live with that for the rest of their lives? I would ask the Minister to take on board this matter. The necessary measures should be implemented now and should not be put off until tomorrow when it may be too late.

I was less than impressed with the Tánaiste's remarks on this matter. All he could do was pour cold water on the proposal brought forward by the Progressive Democrats, which we fully support, and suggest it is playing politics. Will the Government please stop playing politics? It should deal with an issue it has promised to deal with and stop running away from it.

Mr. Ferris

I am glad to have the opportunity to speak on this important and sensitive subject. A referendum was held some years ago to try to address the problem of marital breakdown and the Oireachtas has gone to great lengths in setting up committees to deal with the problem. A White Paper was published by the Government and a specific report was published on the question of matrimonial difficulties. The speech made by Deputy Durkan is the kind of speech people expect from the Legislature because it reflects the balance that is necessary in dealing with a personal matter between a husband and wife whose marriage is in difficulty. This is a matter which the Government, with the support of the Opposition parties, which is essential to the success of the referendum, must deal with in a skilful and comprehensive manner before it is put to the people.

I am sure Members were reassured tonight by the Minister for Justice, Deputy Geoghegan-Quinn, who reconfirmed the Government's commitment to proceed with the referendum. Both parties in Government are committed to the Programme for Government which was published before our party accepted ministerial responsibility and before the Fianna Fáil Parliamentary Party accepted its role in this area and many other areas of social legislation. Individual members of all parties express the views of constituents. The Government's commitment to holding a divorce referendum is set down in the Programme for Government and it intends to meet that commitment.

Doubts have been expressed by speakers, particularly from the Progressive Democrats Party, about the commitment of the Government, particularly the Minister for Equality and Law Reform, Deputy Marvyn Taylor, who is listening to this debate. We should re-emphasise for those who have doubts and concerns in this area the commitment given by the two parties in Government. Under the heading, "Women's Rights", the programme states: "In addition to the Equal Status Act, the Minister for Equality will pursue a broad programme of institutional, administrative and legislative reform aimed at enhancing the rights of women". Progressive Democrats' spokespersons cannot accuse Members of the Labour Party of not availing of every possible opportunity to defend and enhance the rights of women.

Ms O'Donnell

The Deputy should go back to the Bill.

Mr. Ferris

I will speak on the Bill.

Unlike the Deputy who had great difficulty in continuing until Deputy Durkan arrived, I wish to follow a particular format. If the Deputy wishes to hear the views of a rural constituency she should allow me the opportunity to speak.

Mr. Molloy

The Deputy should not be so tetchy.

Mr. Ferris

I am not tetchy.

An Leas-Cheann Comhairle

Deputy Ferris, without interruption.

Ms O'Donnell

Look how restrained the Minister is.

Mr. Ferris

The amazing thing about this section of the Opposition is the moment anybody questions what it is proposing, it is so tetchy that its speeches are aimed not at the need for the Bill but at what the Tánaiste said and the way he dismissed them. We only got one day's notice of this Bill before the Easter recess.

Miss Harney

Does the Deputy remember the notice he gave about jobs in Clonmel?

Mr. Ferris

Bills should not be introduced overnight and people should have an opportunity to consider their contents. The Progressive Democrats should not expect the Government to go down on its knees and say that only for it the Government could not legislate in this social area. That party chose a time to introduce the Bill when it knew the Minister responsible was not available to respond. The Minister will be available tomorrow night to respond in a manner appropriate to Private Member's legislation. I defend the right of Opposition parties to introduce such legislation. When my party was in Opposition I published Private Members' Bills which were not always accepted. This Government has accepted relevant Bills, but surely the Progressive Democrats do not expect the Government to accept a Bill that is defective.

The Programme for Government, which the Progressive Democrats have always questioned — it also questioned the commitment of the Labour Party — states that in the short term, reform in this area will include necessary changes in Government Departments and functions for which the Minister present will have responsibility, as in the case of equality for women. The programme states that there will be major family law reform, culminating in a divorce referendum in 1994, modernisation of the law on nullity and so on. The Government is committed to implementing this programme.

Mr. Durkan

There are other things in the Programme for Government which the Deputy forgot about.

Mr. Ferris

The Tánaiste stated in his speech on this issue:

The Family Law Bill, 1994 now before the Select Committee on Legislation and Security is one of the most extensive pieces of family law legislation to be initiated in recent times. It has measures aimed at protecting and safeguarding the institution of marriage and it provides substantial powers to the courts to deal with the financial consequences of marital breakdown in certain cases. Those powers will in substance be the same as the powers in any divorce legislation and they include wide powers in relation to maintenance, lump sums and property generally, including the family home and pensions.

That is what the Family Law Bill is about.

The Government has also made changes in the area of tax and social welfare, a matter that has been taken up, and rightly so, by members of the hierarchy. The Hierarchy preach about the importance of marriage and of the role of the family as the basic unit in society. None of us would deny them the right to do that. I do not think anyone would suggest that one should not support the concept of the family unit as the basic unit in society.

The Government has given a commitment to deal with the issues of tax and social welfare, particularly as they relate to marital breakdown. Councillors and other public representatives are confronted every week with problems about housing and income. It is extraordinary that in the last referendum on divorce some people whose marriages had broken down did not vote in favour of divorce. Some women in my constituency whose lives had been ruined by brutality and other problems were reluctant to give their husbands the freedom to ruin other women's lives. There are many sides to this issue which the Government is approaching in a sensitive manner. None of us should disregard the impact of marital breakdown on the lives of the people involved and their children.

The Government will base the divorce referendum on the legal right of a person to have a second chance of happiness. Contrary to what the Hierarchy thinks, this will be a legal, as opposed to a moral, right if the referendum is passed. The Government has agreed that property transfers between spouses whose marriages are dissolved following divorce or are annulled should be dealt with on the same basis as transfers between spouses. It has also agreed that the necessary changes in social welfare should be made to ensure that no spouse will be disadvantaged in terms of his or her social welfare entitlements as a result of his or her legal status being changed from married, separated or deserted to divorced or anulled.

The Tánaiste in his speech, which was seen by many people as offensive, said that there was no similarity between this Bill and the Matrimonial Home Bill, 1993——

Ms O'Donnell

That is the point.

Mr. Ferris

——which was supported by all parties in the House, including the Progressive Democrats. The decision of the Supreme Court on the Matrimonial Home Bill is not a reason to immediately put in place an alternative measure which is of no relevance and does not deal in a similar way with the specific problem.

Miss Quill

There is a difference between relevance and similarity.

Mr. Ferris

I am quoting from the speech of the Tánaiste whose legal opinion has apparently been questioned.

Miss Harney

It most certainly has.

Mr. Ferris

People are entitled to question his opinion, but the Tánaiste is as entitled as any member of the Progressive Democrats to express his view. He said that the object of the Matrimonial Home Bill was to give each spouse equal rights of ownership in the matrimonial home and contents, unless they already had those rights. This is why the Supreme Court decided to declare the Matrimonial Home Bill unconstitutional — it was deemed to unduly interfere in arrangements about the family home already agreed between spouses.

He went on to say:

It would be a mistake, however, to think that the various protections now in place, most notably the Succession Act, 1965, the Family Home Protection Act, 1976, and the Judicial Separation and Family Law Reform Act, 1989, have been adversely affected by the decision of the Supreme Court. Indeed, the Government is actively examining the ways in which these protections might be strengthened and affirmed.

I understand the Minister for Equality and Law Reform made a similar statement in the House when he expressed his disappointment at the decision of the Supreme Court on the Matrimonial Home Bill. The Tánaiste continued:

This does not mean that the Government no longer believes in promoting the concept of equality of ownership rights in the matrimonial home. However, if meaningful reform in this area is to be attained, any legislation must secure a real and tangible interest for a non-owning spouse in the matrimonial home. If this were not to be the case, any legislation would lack credibility.

The Tánaiste dealt in his speech with the inadequacies of the Progressive Democrats Bill. He is as entitled to express his view as are the sponsors of the Bill to say this is the best Bill brought before the House. I do not have any problem with that.

Miss Harney

Is there anything good about the Bill?

Mr. Ferris

It is incumbent on all of us to support one another.

(Interruptions.)

Mr. Ferris

The Progressive Democrats Party will have to wait until it is in Government. It is not in Government but it obviously wants to be.

Mr. Durkan

We want to be in Government and I am sure the Deputy's party——

Mr. Ferris

I suppose the same can be said of Fine Gael. I am sure there are Deputies on the Opposition benches who would love to be in Government——

Miss Harney

We cannot wait.

Mr. Ferris

I would be critical of them in Government if I was awaiting legislation.

Miss Harney

It will not be long—

Mr. Ferris

The legislation necessary for the divorce referendum will require the support of all Members. It should be remembered that vested interests, legal and otherwise, and others, genuinely believe that the introduction of divorce will in some way disturb the concept of the family unit. All the necessary legislation will have to be beyond doubt and constitutional so that no questions can be raised about its implications for property, etc. In the past it was the side issues, so to speak, which gave rise to the problems — some farmers did not mind that their marriages had broken down but they did not want to give their wives half of the livestock or property; people were not worried about making some legal arrangement as regards their marriage but they were worried about ownership of property, particularly as it related to agricultural property.

Mr. Durkan

It was a type of barter system.

Mr. Ferris

The Government has introduced some key legislation in the family law area. Deputy McDowell said he would avail of the opportunity to introduce relevant amendments to the Bill to which I referred. This would be a welcome extension of democracy. The other measures introduced by the Government are being debated publicly by the Hierarchy and others.

Deputy Harney referred to the need for the Government to allocate additional funding to the Free Legal Aid Board and to make clear its reasons for addressing the issue of marital breakdown. The Minister has taken into consideration the situation in rural areas — there is more to Ireland than Dublin 4 — where people are trying to survive, many of whom may be sceptical about divorce. It will not be easy to carry this referendum. In order to ensure that it is carried, something which I think all members of the Government and Opposition parties want, we must put in place all the necessary legislation. If it is not in place, and I agree with statements that have been made by the Opposition, the likelihood of losing this referendum is quite possible and we will all then have a responsibility to address the problem of the 60,000, 70,000 or 80,000 broken marriages, the partners of which are living in devastation and outside the law. The children of those marriages, and the children of the new unions, are all suffering and none of them can voice an opinion. Those of us dealing with the problems caused by marital breakdown are aware of the implications for children and, therefore, must ensure that all aspects of this issue are addressed, property rights, women's rights within the home, the rights of children or the rights of extended families of married couples.

The vast majority of families are quite happily trying to cope with the every day problems in life and are trying to make a go of their marriages. That does not, however, allow us the comfort of sitting back and saying "I am all right, Jack" and forgetting about everybody else. We all have a responsibility to address the real problem, which is to give an opportunity to people to make another start in life and to find happiness. That is a basic human right. The morality of it can be argued and preached about, and I defend that, but we must be conscious of those other rights also.

One of the women Members of the Labour Party, on a recent radio programme with Deputy Durkan, put her case in this regard and there was no comment made about her views. I am referring to Deputy Shortall who has a view on this matter and who, through no fault of her own, has had no opportunity to express that view in the House. There are times when opportunities on the floor of the House may not be available. That is a possibility which one must accept.

Mr. Durkan

The Deputy is the Whip.

Mr. Ferris

I have not precluded anybody from speaking in this House. I was most anxious to hear the contributions of the Progressive Democrats Members in the week before the Minister was available to contribute so that I would know their views. I am quite sure, having listened to those views, that the Minister will be a wiser man because the Progressive Democrat Members seem to think they are the only group of people who have all the knowledge and experience in this area. They seem to think that were it not for them bringing forward this legislation, the Minister would slink away into some dark corner and not worry about the commitment in the Programme for Government.

Mr. Durkan

They have slunk away from other parts of the Programme for Government.

Mr. Ferris

I have quoted from the Programme for Government and Deputy Durkan will be disappointed because there is a commitment to implement all of the programme.

Mr. Durkan

They have slunk away from other parts of the Programme for Government.

Mr. Ferris

They have not. We have been in Government for the past 15 months——

Ms O'Donnell

It seems much longer.

Mr. Ferris

——and Deputies are so impatient.

Mr. Durkan

Several parts of the programme have been slunk away from.

An Leas-Cheann Comhairle

The Deputy, without interruption.

Mr. Ferris

Given the short time available to Government speakers to consider the Bill — and in total contradiction to what the Progressive Democrats would normally seek from the Government — it was unfair of them to come into this House and pour scorn on those who did not say immediately that because this legislation was introduced by the Progressive Democrats, who are very good on social and economic areas, it should be accepted. In this debate we have been criticised for the fourchettes and in regard to the Maastricht funding. The whole object of this debate was to avail of the opportunity to criticise the Tánaiste, who was forthcoming in his views on this Bill. As the Progressive Democrats Members have said, it was an important Bill anyway—

Miss Quill

We did not say that.

Ms O'Donnell

"Modest" was the word.

Mr. Ferris

The Deputy should read Deputy Keogh's contribution when introducing the Bill.

Ms Keogh

I said it was modest.

Mr. Ferris

We must be careful about the words we use——

Miss Quill

Of course.

Mr. Ferris

——because Members are extremely tetchy when we suggest they might have used other words.

The Progressive Democrats say that this Bill comes under the area of law reform but the Government is correct when it states that the legislation before us could actually cause more harm than good if implemented. The Bill is supposed to deal with disputes between spouses in relation to the matrimonial home. The issue is a complex and difficult one requiring careful study, which the Minister has said he will do in consultation with the Attorney General. The Government is obliged to heed the advice of the Attorney General whether the Opposition like it or not. That is the structure of Government and we must ensure as a Government party that no subsequent legal difficulties arise from this legislation.

It is quite possible that this Bill is flawed in several areas. The Progressive Democrats originally said it was not very important legislation; they say now it is important but——

Miss Quill

That was not said.

Mr. Ferris

I accept that. Whatever word Deputy Quill wants to insert in the Bill, and if it is important to her——

Miss Quill

I plead on behalf of the English language. That was never said.

Ms O'Donnell

Women's rights are important. Deputy Ferris should talk to his constituents.

Mr. Ferris

I accept the Deputy's view on that but she must also accept our view that we consider that it is unimportant and flawed.

Miss Quill

The Deputy should not quote us as having said that.

Mr. Durkan

Is the Programme for Government important?

Mr. Ferris

It is, but we do not want flawed legislation such as this. We want to bring the proposals in the Programme for Government to fruition and bring it to the people in such a way that it will be acceptable to them. This legislation deals only with a limited number of people.

Ms Keogh

Married women working in the home.

Mr. Ferris

In dealing with that limited number of people it would cause wholesale confusion and possibly lead to litigation. Of course, there are people in the Progressive Democrats who would benefit from litigation——

Mr. Durkan

It could lead to a general election.

Mr. Ferris

Did the proposers of this Bill take that into account before they brought the Bill before us? I have served with Deputy Keogh as a Whip and I have always found her helpful and easy to get on with. We have worked well together, and indeed Deputy O'Donnell also. However, I was sitting beside the Tánaiste when Deputy Keogh was making her contribution which seemed to involve an outright attack on the Labour Party rather than the promotion of her Bill.

Mr. Durkan

That is foul.

Ms Keogh

I was speaking on behalf of women.

Mr. Ferris

Unfortunately, when a spokesperson is put in for the Government side the Opposition complain and they complain when the Government does not speak.

Miss Quill

Deputy Ferris has lost his critical faculties.

Miss Harney

The Minister, Deputy Geoghegan-Quinn, was much more responsive.

Mr. Ferris

My faculties are quite appropriate and adequate to deal with this Bill.

Miss Quill

That is an aberration.

Mr. Ferris

Perhaps Deputy Quill was not in the Chamber but I quoted excerpts from the Tánaiste's speech——

Mr. Durkan

He will not like that.

Mr. Ferris

——which apparently the Deputy has lost sight of because it contained positive aspects. The Opposition has been preaching to the Tánaiste about playing politics with this very sensitive area. The moment one rises to speak in this House on any subject matter, Fine Gael or the Progressive Democrats will disagree. For 30 minutes or so one tries to make a contribution but we are continually heckled. When the Opposition want members of the Government to speak, they want them to agree with everything the Opposition says or does. There has been so much rain recently, because the Lord promised he would wash away the sins of the world. We were pleased when we heard there was a Bill forthcoming from the Progressive Democrats but, on reading its contents, we said: "what a pity" because, as a constructive Opposition——

Miss Harney

Fianna Fáil is very disappointed with the Deputy.

Mr. Ferris

——they failed to avail of Private Members' time to the fullest extent by bringing forward a Bill the Government could accept whose provisions might have addressed some of the problems in this area.

Debate adjourned.