The Minister and his draftsmen are to be congratulated once more. If the Minister goes on at his present rate, he will, I think, prove to be a greater legislator than any since the Emperor Justinian. To a lawyer, there is something very satisfying in these codifying statutes, since we suffer in this country from a lack of textbooks. We carry on here on a very complicated basis of English statute law, common law and decided cases. That system has been possible in England because of the frequency of textbooks and so forth. Because this country is so small and because the market is so small, it is impossible to produce textbooks here. Indeed, in the end, this country may have to turn to a code of law such as exists in the Roman law countries, for example, France and Germany.
The Minister is doing excellent work in gradually codifying the law here. That codification will ultimately clear the way to what will be a simpler and more appropriate form of jurisprudence here. If we continue as we are going at present, in a few years' time, the law will be completely unknowable. It has practically reached that point at the moment, because of lack of appropriate textbooks. From that point of view, the work the Minister is doing along the lines of codification is extremely valuable and he is to be commended for it.
This is a Bill which lends itself to discussion more on Committee than on this stage, but there are nevertheless extremely important points which must be made now. There are some things omitted from the Bill, things which I hold should be incorporated in the Bill. One is in relation to the devolution of property when a wife dies intestate. A married woman has exactly the same right and freedom to make a will as an unmarried woman or a man. That has been the position for years. If, however, a wife dies without making a will, all her personal property goes to her husband. That used to be the law in England. It is not the law in Scotland; it is not the law in France. It is time it ceased to be the law here.
If a husband dies without making a will, the wife takes one-third and two-thirds go to the children. I think the same position should obtain when the wife dies intestate. I see no reason why the husband should automatically succeed to the whole of his wife's property. I see no reason why the law of devolution of property in the case of a wife should be any different from the law of devolution of property in the case of a married man. Indeed, one might have thought perhaps that it should have been the other way about, because the husband is supposed to provide for his wife and, if he fails to make a will, then all his property should go to his wife. I see no reason why all the wife's property should go to the husband and I should like to offer an amendment to that provision. It is a very important point.
There is another point which is not quite so important. At the moment, there is an anomaly in relation to married women. Under our Constitution, the husband is the natural guardian of the children. One would expect that, on the death of the husband, the wife would be the natural legal guardian; but she is not so, of necessity. No matter what rules one lays down, there will be hard cases, but it should be the law that, when a husband dies, a wife should be the guardian of the children.
There is one clause to which I am very much opposed. Senator Kissane approved of it. I refer to the clause abolishing restraint on anticipation. The idea hitherto was that a father in providing for his daughter had power to settle property in such a way that the daughter, while married, could not anticipate her income. The purpose was to protect the woman from the possibility of her husband's folly. There obviously could be cases in which, having made that provision to protect the daughter, it might subsequently be found much better, had the daughter been able to dispose of her property; but experience has proved that restraint on anticipation was both wise and proper and I see no reason why the Legislature should now seek to prevent people giving that protection.
I am as anxious as everyone else to ensure that the status of women should be both as strong and as good as that of men. I hold they should have exactly the same rights as men. But it is the experience of everyone who has to deal with this kind of case that you do get cases of a woman with property who has to be defended or ought to be defended against the attempts of her husband to get at her property. As the Minister has said, such a clause in a settlement could be set aside by the courts but that is no reason whatever for general abolition of it and I think that in introducing this section we are merely following an example that was set in England some years ago and, I think, was set with very doubtful wisdom. There is this very unfair part of this provision, that it applies to past settlements and wills as well as to future ones. As regards future wills, really no difficulty would arise because, even if the section is passed in the form in which it is now, it would be a very simple matter for a draftsman, even with the section as it stands, to draft a clause that would give exactly the same protection to a woman but the effect of passing the section in this way is that you are upsetting retrospectively perfectly valid dispositions which were made in the past by people for the protection of the daughter or the woman. I feel that that is wrong and I do not think that we ought to do it.
There has been a good deal said as regards Section 2, which gives the right to the wife to take actions against the husband. That is a thing that really should be considered very carefully and very fully because one would have to try to follow out what are the consequences of it and where does it lead us. As it stands in the Bill, it looks a very good thing and a very sensible thing. It seems clearly a sensible thing that the wife should have exactly the same rights as any other individual to protect herself or her property against her husband, but what may be the consequences of that when the law begins to work on it? Is it to apply both ways? Is the husband to have exactly the same rights against the wife and, if he is, how far are the wife's rights being irretrievably damaged?
One very important part of a marriage ceremony is that the husband gives his wife the right to his property or goods. Of course, to a large extent, in practice, that is nonsense nowadays because it does not mean that the wife gets all the husband's investments or anything like that, but it does mean that she gets very great rights in many ways to his property, to live in his house and use his things — to do all sorts of things. If the Bill were passed in its present form, it undoubtedly means that the wife can prevent her husband from interfering with any of her property. That is a very sensible and a very just thing and I fully agree with it but does the corollary apply? Does it now mean that the wife is really left with no rights whatever against her husband? It seems to me that, as the Bill stands in that respect, it wants a great deal of consideration and it seems to be quite possible that, as drawn at present, this Section 2 may have extraordinary results and may have results which might be very injurious to the married woman.
I do not propose to say anything more on this stage. The Bill is obviously a most important one. In dealing with the status of married women it is really dealing with the status, not of half the population, but of the whole population because it cuts both ways and it is obviously a Bill which requires very careful discussion on Committee and later stages.
