Vol. 475 No. 2
11 Dr. McDaid asked the Minister for Equality and Law Reform the plans, if any, he has to introduce legislation in view of the diverse nature of the modern family unit in Ireland and the disadvantage suffered by families other than those based on the married couple in respect of a range of issues such as inheritance, pensions and other matters. [4599/97]
The Deputy will appreciate that the requirements of the provisions in the Constitution are such that there may be constraints on what can be done to deal with the position of those who live together outside marriage. The position has been the subject of examination in the recent report of the Constitution Review Group which, while appreciating the point of view of those who feel that persons living in family units not based on marriage should have constitutional recognition, points out that the constitutional protection of rights of any family unit other than a family based on marriage represents significant difficulties of definition and policy.
The group makes certain recommendations which fall short of equating the position of, say, cohabitants with married couples. It recommends retention of Article 41 of the Constitution to guard the institution of marriage with special care, subject to a provision that this should not prevent the Oireachtas from legislating for the benefit of families not based on marriage. The group's final report now falls to be considered by the all-party Oireachtas committee on the Constitution.
Our inheritance laws give special rights to spouses, children — including children of a non-marital union — and certain other relatives. While those special rights do not extend to cohabitants, the law in relation to testate succession already permits succession by cohabitants where those special family rights are not infringed. It may be a matter for consideration as to whether the law can and should go further in the case of intestacy but there could be considerable difficulties in framing such a law. I have asked the Law Society for views on the operation of our succession laws and I propose in due course to take those consultations and other relevant views into account in any proposals for amending legislation that I may bring forward. My Department has no responsibilities in relation to pensions other than in relation to provisions which I initiated in the context of marital breakdown in our judicial separation laws as contained in the Family Law Act, 1995, and in our divorce laws as contained in the Family Law (Divorce) Act, 1996. The Departments of Finance and Social Welfare have responsibilities which shape overall policy in relation to pensions.
In so far as policy generally in relation to the family is concerned, as well as the changing nature of the family, the Government established the Commission on the Family to examine needs and priorities. The commission has been asked to make its final report to the Government by June 1997 and its recommendations will fall to be considered by relevant Departments in due course.
Relevant aspects of the law in relation to cohabitants, taking into account the constitutional restraints, is the subject of review on an ongoing basis in my Department. That approach has resulted in the important safety and barring order provisions in the Domestic Violence Act, 1996, being extended to cohabitants for their protection from violent partners. Garda powers of arrest in cases of violence against cohabitants have also been strengthened. I initiated also provisions now contained in the Civil Liability (Amendment) Act, 1996, the effect of which are that certain cohabitants may, in fatal injury actions, claim damages as compensation for loss of pecuniary benefits, for mental distress and for funeral expenses where the death of the other cohabitant is caused by the wrongful act of a person. There are aspects of the law in relation to guardianship which I have also had reviewed by my Department and the results will be announced as soon as possible in the context of publication of the Children (No. 2) Bill. Other aspects of the laws which apply to cohabitants will be developed, with a view to legislative changes, as may be feasible and warranted as other legislative priorities permit.
Will the Minister agree that the nature of society is complex? I framed the question by referring to families other than those based on the married couple who had not made wills. While the Minister focused his reply on cohabiting couples, my question was directed at those on the margins of society where a dependency and an injustice can arise as a result of our laws. Outside the family unit and the cohabiting unit there are other units, for example, two elderly brothers or an elderly brother and elderly sister living together. Existing law can result in a number of injustices for those people. On the death of one or other, the survivor may have to sell the farm in order that it may be made divisible among a multitude of others who may arrive from different areas. Will the Minister consider setting up a register of people who have not married and have not made a will so that they will find it easier to provide for the person who has looked after them? There are a multitude of areas in the family unit where injustices can arise.
Deputy McDaid raised a broad-ranging question. As I understand it, he is referring to two brothers who share a house. It is difficult to give an answer on an issue that is not more specific. A difficulty arises where one of the people has failed to make a will. It is extremely important that a person in that situation makes a will. The Law Society has been active in recent years in trying to promote and encourage the making of wills. It is a simple and cheap procedure for the most part and should be availed of. In many cases there are unforeseen and undesired results in the administration of property when a will has not been made. I do not think it would be possible to cover by legislation every vagary and every situation that could arise.
In the case of brothers there could be a particular family background where it would be reasonable, proper and appropriate to divide the property on a wider basis other than the two brothers when one dies intestate. If one of the brothers is the sole owner of the property that person would be well advised to make a will.
As far as the generality of cohabiting is concerned, it is a broad and difficult issue. Anybody who reads the comments of the Constitution Review Group will realise its complexity. In the legislation I prepared in my Department, I have identified a number of issues where special attention and understanding had to be given to cohabitants, normally between men and women. I instanced the case of domestic violence where a right to obtain a barring order until that Act was in force did not apply for the benefit of a cohabitant. As a result of the Act that right now applies in certain circumstances, likewise in the Civil Liability (Amendment) Act, 1996, where people have been cohabiting for a certain minimum period and one is killed by a wrongful act. Until that Act came into force — which it did recently — it was not possible for the other cohabitant to bring a claim. We are also examining aspects of the law in relation to guardianship in the context of the Children Bill. Where it arises in specific instances we are happy to examine it carefully. It is a difficult area and one has to define what is meant by a cohabitant. The Constitution Review Group raises the rhetorical question: what is meant by a cohabitant? Is it people who have been living together for a week, a month, a year, three years, five years or ten years? All these questions come into play. It is a complex area but it will have our ongoing attention.
I agree with the Minister about the definition of cohabitant. Outside the sexual context there is cohabitation in rural Ireland. The ESB operates a policy for its employees whereby any benefits accrued from contributing to the scheme go to the spouse. If that person is single and living with an elderly person there is nothing for that person. What is the position in the case of cohabitants where the gentleman dies and there is nothing left for the partner? In the ESB, benefits which would normally accrue are paid to the spouse but in certain instances, such as that of the elderly father living with the daughter or son, they do not pertain to that family unit.
I am not familiar with the provisions of the ESB pension scheme. The provisions of pension schemes vary. For example, where a person does not have a spouse it is open to him to nominate the beneficiary while in other cases the benefits can be disposed of by way of a will.
Many large companies have such schemes.
If the benefits are not disposed of by way of a will they will be disposed of in accordance with the intestacy provisions to the immediate family. It behoves all those involved in pension schemes to see what they can do and, where appropriate, to make a will or to agree with the pension provider other arrangements which may be available under the terms of the policy. Schemes vary and I could not comment on a particular scheme without more information.
The Minister referred to the beneficiaries. Does he think it would be possible within the existing legal framework to provide that a person must nominate a beneficiary? The Minister said the definition of "cohabitee" is being examined by the Constitution Review Group. The domestic violence legislation sets out a certain period after which people are regarded as cohabitees. Is there a general provision which states that people will be regarded as cohabitees after, say, three months or does the time vary according to the legislation?
There is no generalised specific period; it is a definition matter for determination by the Oireachtas in respect of individual legislation. If I recall correctly, the period set out in the Civil Liability (Amendment) Act is three years.
On the question of whether it would be possible to legislate in the way proposed by the Deputy in regard to pensions, I would have to consider that. The question of pensions legislation comes within the ambit of the Ministers for Finance and Social Welfare. I dealt with the pensions aspect of marriage breakdown in the Family Law Act, 1995, and the Family Law (Divorce) Act, 1996. However, the specifics of pension schemes, which are complex are the responsibility of another Minister. Pensions are basically contracts and the people who form and participate in them have a contract. Schemes differ greatly and while they are formed to suit the needs of members they can be varied with their agreement.
