I move: "That the Bill be now read a Second Time."
The main purpose of this short but important Bill is to provide for validation of marriages where the three months' notice of marriage requirement under the Family Law Act, 1995, was given by some couples to the wrong Registrar of Marriages. The Bill sets matters right in those cases by validating, with retrospection, the marriages concerned. It also prevents such cases happening in the future by providing that a marriage shall not be deemed to be invalid in law solely by reason of notification being given to the wrong registrar. The opportunity is also being taken to make some useful technical legal changes to the law on barring orders granted in the case of cohabitants, on irrevocable powers of attorney and on disclaimers of interest in cases of intestate succession.
Section 32 of the Family Law Act, 1995, requires parties to a marriage to notify the Registrar of Marriages for the district in which the marriage is to be solemnised of their intention to marry not less than three months prior to the date of the marriage. The effect of section 32 is that, unless special exemption has been obtained from the Circuit Court or the High Court under section 33 of the 1995 Act, a marriage shall not be valid unless the parties have met the notice requirement.
The policy enshrined in section 32 of the 1995 Act derives from a considerable body of sources. It was recommended by the Oireachtas Committee on Marriage Breakdown in 1985 and it formed part of the Government's statement of intentions with regard to marriage, separation and divorce in the run up to the 1986 divorce referendum, while the merits were discussed in the Government's White Paper on Marriage Breakdown in 1992. During the Government's information campaign prior to the divorce referendum in 1995 the section was highlighted as one of the Government's measures to protect and support marriage. The provision now contained in the 1995 Act was the subject of debate during February 1994 and September 1995 and was welcomed by both sides of the House. The period of three months, as provided for in the Act, was considered appropriate to allow for a period of reflection on marriage as an institution of the greatest importance. The provision was welcomed by all interest groups, including the Churches.
My colleague, the Minister for Health, who has responsibility for the Office of the Registrar-General of Births, Deaths and Marriages, has informed me that considerable steps were taken by the Office of the Registrar-General to advise the general public, clergy and registrars of the new notification requirements. Those steps included the production of information leaflets for couples intending to marry, for celebrants and for registrars as part of a process which began early in March 1996. Notices in relation to the new requirement appeared in all national papers, the Sunday papers, 40 provincial papers and some magazines, while there were advertisement slots on RTE and commercial radio. In addition a number of circulars were issued to registrars reminding them of the importance of those procedures and of the need for strict compliance with the guidelines. Training courses were also held for registrars.
Since introduction of the notification requirement on 1 August 1996, the notifications which have been processed by registrars have not given rise to difficulties in 99 per cent of cases. I understand that between May 1996 and April this year notifications of intention to marry were received in respect of approximately 17,500 marriages and of this number 167 cases were referred to the Office of the Registrar-General for review. While 42 cases were found to be in order, 84 were found not to be in order because the parties failed to give any notice, gave notice short of the three months required or gave notice in error to a registrar for a district other than the district in which their marriage was to be solemnised. The remaining 41 cases are currently being examined to establish if the requirements of the Act have been met.
It is important to emphasise that the substantive requirement under section 32 of the 1995 Act of three months notice of intention to marry is not affected by this Bill. Neither does the Bill provide for the validation of marriages where parties failed to give notice in time or failed to give any notice. Circumstances can arise, however, where the inflexible application of the notification rule under section 32 could be unfair to parties. In recognition of this, it is provided for in section 33 of the 1995 Act that a person can apply to the court for an exemption from the notice requirement. In line with the substantive nature of section 32, exemptions by the court shall not be granted unless the applicant shows that its grant is justified by serious reasons and it is in the interests of the parties to the intended marriage.
The Bill deals with those cases where doubts have arisen as to the validity of marriages where notice was given to the wrong registrar. In those cases, it is reasonable to assume it was the intention of the parties concerned to comply with the law. For one reason or another, the notifications were unfortunately placed with the wrong registrar and the mistakes, having been made, were not discovered in time for all concerned to do anything about them. The Minister for Health has stated on several occasions in the House his concern about the matter and his regret about the position that has ensued for the parties concerned.The Minister for Equality and Law Reform has shared that concern and, in consultation with the Minister for Health, indicated his intention to bring forward amending legislation. The Bill implements the commitment of both Ministers in that matter.
I now turn to the specific provisions of the Bill. Sections 2 and 3 amend the 1995 Act in relation to the notification of intention to marry provisions in a number of respects.
Section 2(1)(a) inserts a new subsection (5) into section 32 of the 1995 Act to enable health boards pay fees to certain Registrars of Marriage to compensate them for processing the marriage notices they receive under the section. The certain registrars comprise about half of all registrars.They are not officers of health boards and their remuneration is currently made up of fees paid by the public and by the appropriate health board for each registered marriage. The new subsection provides that the level of fee to be paid to those registrars will be specified in regulations to be made by the Minister for Health under section 32(4) of the 1995 Act.
Section 2(1)(b), which substitutes a new subsection (6) for subsection (5) of section 32, contains a definition of the Registrar of Marriages for the purposes of the Act of 1995. In relation to a marriage to which section 11 of the Registration of Marriages (Ireland) Act, 1863 applies, it will mean the registrar appointed under section 10 of that Act or a person authorised to act on his or her behalf. In relation to any other marriage, it will mean the registrar appointed under section 57 of the Marriages (Ireland) Act, 1844 or a person authorised to act on his or her behalf.
Section 2(2) introduces a degree of flexibility as regards the jurisdiction of the Circuit Family Court to deal with applications for exemptions from the marriage notice requirement. Under section 38(4) of the Act, as it stands, exemptions may be given by a judge of the circuit in which any of the parties to the proceedings ordinarily resides or carries on any business, profession or occupation. Accordingly, the parties to an intended marriage have to apply to that circuit for such an exemption. Section 2(2) provides that applications for exemption from the marriage notice requirement may be heard by the judge of any circuit.
Section 3 deals with the validation of marriages where notification was given to the wrong registrar.Subsection (1) provides for validation where notice was given, under section 32 of the 1995 Act, to a registrar appointed under either the Marriages (Ireland) Act, 1844 or the Registration of Marriages (Ireland) Act, 1863, and that registrar was not the registrar for the district in which the marriage was intended to be solemnised. It also provides that, in the future, where couples give notification to the wrong Registrar of Marriage, this will not of itself invalidate the marriage.
Subsection (2) validates any marriages which have taken place since 1 August 1996 where a judge of the Circuit Family Court may have granted an exemption from the notice of marriage requirement in cases where the court did not have the jurisdiction to do so because the parties did not ordinarily reside or carry on any business, profession or occupation in that court's jurisdiction. The provision is for the avoidance of doubt and is a logical consequence of the amendment being proposed under section 2(2). That problem, if it exists at all, will not arise in the future because of the provision in section 2(2) which allows the judge of any Circuit Family Court to grant exemptions.
These are the main provisions amending the notification of "intention to marry" rules. I now turn to the amendments in relation to other areas of the law that are provided for in sections 4, 5 and 6.
Under section 3 of the Domestic Violence Act, 1996, a cohabitant who applies for a barring order must have lived with the respondent for a period of not less than six months in aggregate during the period of nine months immediately prior to the application for a barring order. It has come to notice that there may be a difficulty of interpretation of the Act in those cases where a cohabitant is seeking the renewal or extension of a barring order. For the removal of doubt, section 4 inserts a new subsection into section 3 of the 1996 Act. It provides that where, by reason only of a barring order or interim barring order, the parties have not lived together for the requisite period prior to the application, they shall be deemed for the purposes of the application for a further barring order to have lived together for the requisite period prior to the application for a barring order.
Section 5 amends the law on certain powers of attorney. The Powers of Attorney Act, 1996 is detailed and complex legislation. A main feature of the Act is that it introduces a power of attorney which endures notwithstanding the mental incapacity of the donor. Common law rules had been to the effect that a power of attorney must cease in the intervening event of mental incapacity of the donor. The Act repeals sections 8 and 9 of the Conveyancing Act, 1882 under which certain powers of attorney could not be revoked by the donor's death, mental incapacity or bankruptcy. Both sections had been widely criticised as being confusing and failing to provide adequate protection for third parties. Section 20 of the 1996 Act made it clear the only powers which ought to be irrevocable should be those given by way of security, for example, to protect a mortgage in the event of default in repayments by the donor of the power. This section applies to powers of attorney whenever created.
When the 1996 Act was introduced, it was widely understood there were no cases where powers of attorney had been granted otherwise than by way of security. However, the attention of the Minister for Equality and Law Reform has recently been drawn to a case where a person had given a power of attorney which was expressed to be irrevocable and was in consideration of an annual payment to the donees. The intention of the donor was that the donees should be in a position to act in the event of the donor's incapacity. Legal advice was obtained by the parties to the effect that the power was valid under section 8 of the 1882 Act. Although there may be other similar cases, none has so far been reported. The Minister for Equality and Law Reform is of the view that any power of attorney given before the date on which the 1996 Act came into operation under the 1882 Act, otherwise than by way of security, should not be so affected by section 20 of the 1996 Act. Accordingly, he has provided in section 5 that section 20 shall not invalidate powers of attorney given otherwise than by way of security under sections 8 and 9 of the 1882 Act.
The purpose of section 6 is to clarify the law in relation to the disclaimer of interest in cases of intestate succession. The section is being included following submissions made to the Minister for Equality and Law Reform by the Incorporated Law Society and the Revenue Commissioners for clarification of the law in this area.
The rules governing the distribution of an estate on intestacy are set out in Part VI of the Succession Act, 1965. There is some doubt as to the position of the State, as ultimate intestate successor under section 73 of the Succession Act, 1965, when the next of kin of a person who dies intestate disclaims an interest in the deceased's estate. Section 73 of the 1965 Act provides that, in default of next of kin, the estate of an intestate shall pass to the State as ultimate intestate successor.Section 6 makes clear that the disclaimed estate shall be distributed as if the person disclaiming had died immediately before the death of the intestate, and if that disclaimant is not the spouse of the intestate or a direct lineal ancestor of the intestate, it shall be distributed as if the disclaimant had died without leaving issue. The effect of section 6, which in effect is a codification of existing practice, is that where there are any possible successors of the intestate, other than the disclaimant, they will take precedence over the State for the purposes of intestate succession.
Deputies will appreciate that while the provisions will possibly affect only a small number of people, they are nonetheless important in their own right and for the people concerned. The Minister is happy to respond, by way of this Bill, to the various submissions made to him on these issues. I commend the Bill to the House.