The purpose of this Bill is to abolish the actions for criminal conversation, enticement and harbouring of a spouse, and breach of promise of marriage, to make provision in relation to the property of, and gifts to and between, persons who have been engaged to be married and finally to provide that a consent given by a spouse under section 3(1) or section 9(2) of the Family Home Protection Act, 1976, to the disposal of the family home or the household chattels shall not be or shall not be taken to have been invalid by reason only of the fact that it is or was given by a spouse under the age of majority.
Before commenting on the detailed provisions of the Bill I should like to refer to remarks in the national press attributed to Senators Robinson and Hussey on the occasion of the publication of this Bill, to the effect that the Bill represented a reversal of a previous Government approach, in the words of Senator Robinson "a double somersault", "a change of heart".
These statements and earlier newspaper reports, which were denied at the time, that the Government had decided to introduce a Bill which would give a right of action for adultery were totally without foundation. This Bill represents the first and only set of proposals on the subject adopted by the Government. That there can be no doubt on this point is clear from the record.
The Minister for Justice stated on the occasion of the debate on the Private Member's Bill introduced in the Dáil in March 1980 and on a number of other occasions, that he did not propose to make proposals to the Government on the basis of the working paper — Working Paper No. 5 — 1978: "The Law Relating to Criminal Conversation and the Enticement and Harbouring of a Spouse"— published by the Law Reform Commission but proposed to wait until he had received and considered the final recommendations of the commission.
The commission's final recommendations on the subject are contained in their recent first report on family law. The Government, having given the matter careful consideration, came to the conclusion that it would be preferable, on balance, to abolish the actions for criminal conversation and enticement without replacement. Section 1 of the Bill contains the provisions necessary to give effect to that decision.
The Law Reform Commission recommended that the action for harbouring of a spouse should be abolished and section 1 also gives effect to that recommendation. As I said in the Dáil, the fact that the Government have not accepted the commission's recommendations in regard to criminal conversation and enticement of a spouse in no way minimises the very important contribution that the commission have made to the consideration of the whole question.
Sections 2 to 9 of the Bill provide for the abolition of the action for breach of promise of marriage and for various questions in relation to the property of persons whose agreements to marry have been terminated. These provisions follow generally the recommendations of the Law Reform Commission in their Working Paper No. 4 — 1978: "The Law Relating to Breach of Promise of Marriage", and their first report on family law.
Section 2 provides that an agreement to marry shall not have effect as a contract under the law of the State and that no action for breach of such an agreement may be brought in the State, irrespective of the law applicable to the agreement. The section will have effect in relation to agreements whether they were entered into before or after the passing of the Act but will not — under subsection (2) — affect any action commenced before that date. This section differs in one respect from the commission's recommendation. The commission proposed to abolish the action only in respect of agreements entered into after the passing of the Act. This proposal could have resulted in actions for breach of promise being instituted long after the Act became law. The Government took the view that once the basic decision to abolish the action was taken, it should apply to all agreements to marry including those made before the Bill becomes law.
Section 3 provides that where a wedding gift is given by a third party to either or both parties to an agreement to marry, it will be presumed, if there is no evidence to the contrary, that the gift was made (a) to both parties as joint owners, and (b) subject to the condition that it will be returned on request if the marriage for any reason does not take place. The presumption that such a gift was made to both parties as joint owners will have relevance not only to broken engagements but also to cases where the marriage does take place. Thus the question of ownership of valuable wedding gifts will be settled for the purpose of any dispute that might arise later in regard to matrimonial property. The present law appears to be that wedding gifts by third parties are retrievable if the marriage does not take place, but there is no presumption of joint ownership.
Section 4 makes provision in relation to gifts of property, including the engagement ring, between engaged couples. If the marriage does not take place for any reason other than the death of the donor, it will be presumed, in the absence of evidence to the contrary, that the gift was given on condition that it be returned on request. If the marriage does not take place because of the donor's death, it will be presumed, again in the absence of evidence to the contrary, that the gift was given unconditionally. This provision is in accordance with the recommendation of the Law Reform Commission who adopted the general principle that the law should remove any consideration of responsibility for the termination of the engagement from the determination of whether these gifts are returnable.
Section 5 is concerned with the property of engaged couples. Subsection (1) provides that, where an agreement to marry is terminated, the same rules of law as apply to the rights of spouses in relation to property in which either or both has or have a beneficial interest will apply in the case of engaged couples in respect of any property in which either or both of the parties have a beneficial interest while the agreement was in force. The effect of the subsection will be that previously engaged couples will be treated in the same way as if they had been married so that in the determination of property question any rules of law developed by the courts in relation to married persons regarding contributions to the acquisition or improvement of property will apply to previously engaged couples. Subsection (2) provides that section 12 of the Married Women's Status Act, 1957, which enables an application relating to the determination of questions between husband and wife as to property to be brought in a summary manner before the Circuit Court or the High Court, shall apply to disputes between parties to an agreement to marry which has been terminated in relation to property in which either or both had a beneficial interest while the agreement was in force.
Sections 6 and 7 provide for the making of orders by the court where one party to an agreement to marry that has been terminated has received a substantial benefit, other than a wedding gift, from a third person, or where a party to an agreement to marry or another person on behalf of that party has incurred expenditure of a substantial nature in the expectation that the marriage would take place. Wedding gifts are excluded because they will fall under section 3 as I have mentioned. In the case of an application under section 6 or 7 the court may make such order as appears to it just and equitable in the circumstances.
Section 8 provides for the jurisdiction of the courts in relation to applications under sections 6 and 7 and section 9 provides for a limitation period of three years in respect of proceedings to enforce a right conferred by the Act where an agreement to marry for whatever reason has been terminated. The period will begin to run from the termination of the agreement to marry.
The third matter dealt with in the Bill relates to the consent of a minor spouse given for the purpose of section 3 (1) or section 9 (2) of the Family Home Protection Act, 1976. Section 10 provides that such consent whether it was given before or after the passing of this Act will not be, or be taken to have been, invalid by reason only that it is or was given by a person who has not or had not attained the age of majority. The need for this provision has arisen, in relation to house purchase loans, in the following circumstances.
Section 3 (1) of the 1976 Act provides that a conveyance of any interest in the family home without the written consent of the other spouse will be void except in certain circumstances.
One consequence is that lending institutions, when dealing with applications for house purchase loans from a spouse, need the written consent of the other spouse to the conveyance of the house as security for the loan. Lending institutions have refused to accept the consent of a spouse who is under the age of 21 years, the present age of majority, as a valid consent for the purposes of the section and the result has been, in the case of an adult applicant for a house purchase loan whose spouse is under 21 years, that proceedings have had to be instituted with a view to obtaining the court's authority to give the required consent on behalf of the spouse. The effect of section 10 will be to obviate the necessity for such proceedings. I might add that the view taken by the lending institutions in this matter, that is that the consent of an under-age spouse was not a sufficient consent, was confirmed by a recent High Court decision.
Besides the immediate problem relating to the consent of a minor spouse in relation to the conveyance of a house, a similar problem could arise in relation to the consent of a minor spouse under section 9 (2) of the 1976 Act to the disposal by the other spouse of the household chattels. Section 10 covers that situation also.
Before I leave section 10 I would like to refer to the complete misinterpretation of the section in the other House by Deputy Keating. I replied to the points made on that occasion by the Deputy but in view of the fact that a number of newspapers gave prominence subsequently to the Deputy's contribution I think it necessary to refute again what the Deputy said in relation to section 10. The Deputy claimed that what we are doing in this section is facilitating lending institutions by taking away a right which an under-age spouse already has, the right to repudiate a consent given while he or she was still a minor. The whole point at issue however, is that under-age spouses have not been in a position to give consents at all in the situation in question because the consent of an under-age spouse was not regarded as a sufficient consent for the purposes of the 1976 Act and lending institutions are not and have not been accepting such consents in the case of applicants for house purchase loans and would not do so in the future unless the law were changed. Therefore, rather than doing something detrimental to under-age spouses, we are doing the direct opposite: we are making it possible, in the case of a married couple one of whom is under the age of majority, to obtain a house purchase loan without having to go through the courts.
Newspaper reports suggested also that the section had implications for other areas of the law and that the rights of young persons were being fundamentally altered by virtue of this section. That is not correct. This section, as I have already indicated, deals only with the question of consents required for the purposes of the Family Home Protection Act, 1976. I think it right that I clarify again the position in view of the fact that the newspaper reports I have mentioned might cause confusion in the minds of the young people whom the section is designed to help.
It has been suggested that this Bill should deal with the question of the legal incapacity of persons under 21 years to be party to a contract to purchase a house or to obtain house purchase loans. In this regard let me say that it was never the intention to deal with the contractual capacity of minors in the present Bill. The purpose behind section 10 as I have said is to deal with a separate, specific and important problem arising from the operation of the Family Home Protection Act, 1976. While I have every sympathy with the difficulties of minors seeking to buy houses, it would be undesirable to deal in the present Bill with only one aspect of minority. Any legislation dealing with the question of the general contractual capacity of minors would have to deal with other legal aspects of the status of minors as well as the age of majority itself. As the House is aware, the Law Reform Commission have published a working paper on the age of majority and are at present preparing a final report on the matter which will include a draft Bill giving effect to their recommendations. The basic recommendation in the working paper is to reduce the age of majority to 18 years or earlier marriage which, if accepted, would enable persons of 18 years of age, or of a lesser age if married, to enter into binding contracts including mortgages. I understand that the commission hope to furnish their final report quite soon.
Before I conclude I would like to advert to the fact that the Law Reform Commission's first report on family law contains recommendations in the very important area of matrimonial property. These recommendations and the remaining recommendations in the report, other than those being dealt with in this Bill, are being considered separately.
I commend this Bill to the House.