As Minister for Equality and Law Reform I am happy to bring this very important Bill, the Family Law (Divorce) Bill, 1996, before the House. This Bill, which opens a new chapter in family law, has been made possible by the judgment of the people who, on 24 November 1995, voted to remove the constitutional prohibition on the enactment of legislation on domestic divorce and to replace it with terms on which persons may seek such decrees from our courts. The sovereignty of the people, so central to our system of constitutional law, has been exercised in the 1995 referendum and has withstood challenge to it in the highest courts of our land. The Bill keeps complete faith with what the people were told they were voting for in that referendum.
For the first time, the House has before it a Bill which gives the courts the necessary powers to dissolve a marriage that is over in everything but name. The Bill and the constitutional amendment on which it stands are balanced and compassionate measures which form part of a modern, comprehensive and just response to the problems of marriage breakdown.
The Bill responds to the real needs of many people in society. The latest labour force survey taken last year indicates that the figure for separated persons has now risen to over 85,000, an increase of 17,000 on 1992. Their welfare and that of other family members remains at the heart of the issue.
The absolute prohibition on divorce was, to all too many, harsh and unbending and prevented the legislature in a modern society from addressing properly the position of those tens of thousands of persons whose marriages have irretrievably broken down, many of whom had entered second relationships and wished to remarry.
As in many other countries with cultural traditions like our own and a strong family ethos, the legal option of divorce and the right to remarry will be available to members of society whose marriages have ended. This Bill deals comprehensively with the new situation that is created by the fifteenth amendment of our Constitution. It makes provision for the exercise by our courts of the jurisdiction conferred by the Constitution to grant decrees of divorce. It enables the courts to make orders in or after proceedings for divorce to deal with important questions such as support of spouses and children, distribution of property and custody and upbringing of children.
The Bill is the culmination of a very large programme of reform of family law and administrative measures which I initiated over the last few years so as to create a proper framework to deal with the multiplicity of issues that arise in the context of marriage breakdown.
Those reforms, combined with other reforms in our family laws in the past decade, have been of staggering proportions compared to previous decades since the foundation of the State. It has been stated on several occasions in recent debates on family law that, in the past decade, 18 Bills on the subject of family law have been passed by both Houses of the Oireachtas. That is a record of which the Legislature can be proud. It clearly demonstrates that family law is a priority. The various measures have been of great significance in their own right. The measures which laid specific foundations for divorce legislation were, of course, the 1989 judicial separation legislation, the 1992 White Paper on marital breakdown and the Family Law Act, 1995. The support of both Houses for the dignified way they debated the Government's proposal for the divorce referendum contained in the Fifteenth Amendment of the Constitution Bill, 1995, was also of major significance.
The important associated measures, apart from the Family Law Act, 1995, which I promoted in the run up to the referendum were the Maintenance Act, 1994, the Civil Legal Aid Act, 1995 and the Domestic Violence Act, 1996. In addition, there has been a major expansion in resources for civil legal aid and family mediation and counselling services. Other Ministers have been responsible for other important measures in the social welfare and child care area as well as the courts service. Our laws and support services demonstrate a great commitment to support persons who suffer marriage breakdown and the children of those marriages. Those laws and support services will continue to be reviewed and updated as necessary by this Government.
The Government is proud to be associated with this Bill which is modern in its approach and is intended to give our courts all necessary power to settle disputes, with due regard for the administration of justice, in complex social and legal matters concerning the family.
The main features of the Bill are contained in Part II which sets out the grounds on which a court may grant a decree of divorce. These are as prescribed in the Fifteenth Amendment of the Constitution Act, 1995. This Part of the Bill also contains safeguards to ensure that both parties are aware of alternatives to divorce proceedings and to assist reconciliation. Part III enables the court to make various orders in support of spouses and dependent children following the granting of a decree of divorce. The orders may relate to maintenance, lump sums, property, occupational pensions and to a spouse's interest in the other spouse's estate. Part IV contains amendments to the tax code relating to income tax and capital taxes — stamp duty, capital acquisitions tax, capital gains tax and probate tax — which will ensure that couples who are divorced will not be disadvantaged under the tax code.
Part V includes miscellaneous provisions relating to, for example, the courts' jurisdiction in divorce proceedings. I turn now to the specific provisions of the Bill.
Sections 5 to 9 are key provisions regarding the obtaining of a decree of divorce. Section 5 (1) details the circumstances in which a court may, in exercising the jurisdiction conferred by new Article 41.3.2º of the Constitution, grant decrees of divorce. The section, as it must, replicates the terms of the constitutional amendment which was approved by the people in the 1995 referendum.
In exercising its jurisdiction in relation to divorce, the court must be satisfied that each of three specific conditions has been fulfilled, namely, that at the date of the institution of the proceedings, the spouses have lived apart from one another for a period of, or periods amounting to, at least four years during the previous five years; there is no reasonable prospect of a reconciliation between the spouses and such provision as the court considers proper having regard to the circumstances, exists or will be made for the spouses and any dependent members of the family.
These conditions have already been the subject of long and detailed debate in the House on the Fifteenth Amendment of the Constitution Bill. They have been voted on by the people. They are enshrined as Article 41.3.2º of the Constitution and cannot, of course, be the subject of change by law.
Section 5 (2) is of importance in relation to children. It allows the court, upon granting a decree of divorce, to give directions regarding the welfare, custody of, or right of access to a child under section 11 of the Guardianship of Infants Act, 1964, as if an application had been made under that Act. The purpose of the subsection is to streamline court procedures in relation to children which can be invoked under the 1964 Act in divorce proceedings.
Sections 6 and 7 contain safeguards designed to ensure that parties to divorce proceedings are fully aware of the alternatives to such proceedings, including the availability of mediation to effect a separation or a divorce on a basis agreed between both parties. The safeguards are also designed to assist attempts at reconciliation. The solicitors for both parties will have an obligation in law to ensure that the provisions of these sections are complied with and will have to provide a certificate to the court to this effect at the time divorce proceedings are instituted. It may be that even by the time the parties get to court they may be in a position to settle some of their differences.
In this context, section 8 empowers the court to adjourn proceedings either to assist reconciliation or in order to facilitate both spouses in reaching agreement on some or all the terms of a divorce settlement. The provisions in sections 6 and 7 are similar to those which apply in separation proceedings. The purpose is to inform and encourage parties about options to settling disputes in court over matters that perhaps could be settled for the most part out of court with less cost, acrimony, resentment and bitterness and for the good of the parties concerned and their children.
The effect of the granting of a decree of divorce by the court by virtue of section 9 will be the dissolution of the marriage and each of the parties to a marriage that is so dissolved will thereby be in a position, if they so wish, to marry again.
Part III assigns to the court extensive powers in divorce proceedings to make financial, property adjustment, pension adjustment and other ancillary orders in a way that is designed to do justice to both parties and to children of the family. The provisions in section 10 deal with preliminary type orders that may be dealt with by the court. They allow the court, before deciding on an application for a decree of divorce, to make various orders provided for under the Domestic Violence Act, 1996, namely, a safety order, a barring order, an interim barring order or a protection order and also to make custody and access orders and orders for the protection of the family home and contents.
Sections 11 and 12 are, in one form or another, concerned with the question of the maintenance of a spouse and dependent children. Section 11 allows the court to make interim type maintenance or lump sums payments pending the determination of an application for a decree of divorce. Provision for interim lump sum payments is intended to cover situations where there may be hardship or where immediate bills have to be paid by a spouse. Section 12 provides for the making of orders for periodic payments, secured periodic payments and lump sums for the support of a spouse or dependent children. The lump sums may be ordered to be paid by instalments and to be secured.
Section 12 (6) gives important powers to the courts to order attachment of earnings at the same time as maintenance is ordered to be paid. Before deciding to make such an attachment of earnings order the spouse who is to make the payments must be given an opportunity to make representations in relation to the matter. The previous failure of the spouse to maintain the other spouse and any children would be an obvious consideration for the court to take into account. The purpose of the subsection is to reduce, where possible, the need for a dependent spouse to engage in subsequent court proceedings for enforcement of maintenance.
Sections 13 and 14 are the provisions which allow the courts in divorce proceedings to redistribute property as between spouses for the benefit of a spouse and any dependent children. The word "property" in the Bill, as in the case of judicial separation legislation, is not confined to the family home. It includes any form of property be it the family home, a business, shares in a company and money in bank, post office or building society accounts.
Section 13 provides that the court may make the order for the transfer of property from one spouse to the other or to any dependent family member, an order for the settlement of property, an order to vary for the benefit of the other spouse, or a dependent family member, or both, any ante-nuptial or post-nuptial settlement made on the spouses, or an order extinguishing or reducing the interest of either of the spouses under a settlement of property.
Under section 14 it will be possible for the court to give one spouse the right to occupy the family home to the exclusion of the other spouse. The right may be limited in duration. It may, for example, apply for the duration of the occupant spouse's lifetime. Alternatively, the court may direct the sale of the family home subject to such conditions as the court may think proper and provide for the apportionment of the sale proceeds between the spouses concerned. In either case, the court will be required to take into consideration the need to provide proper and secure accommodation both for a spouse and for dependent family members. Section 14 also allows the court in divorce proceedings to make certain orders under existing statutes, including the Family Law Act, 1995, the Family Home Protection Act, 1976, and the Domestic Violence Act, 1996.
To further ensure that proper provision in the circumstances can be made for a spouse and dependent children, section 15 enables the court to make an order for the assignment, in whole or in part, of a spouse's interest in a life insurance policy in favour of the other spouse or dependent family member or an order requiring a spouse to take out a life assurance policy in favour of the other spouse or dependent family member. These orders are designed to supplement or substitute for, where necessary, other orders in support of a dependent spouse and children.
In the Family Law Act, 1995, I made provision for what should happen to occupational pensions in the context of judicial separation and where a foreign divorce is recognised in the State. Section 16 makes similar provision where domestic divorce is concerned. Section 16 (2) allows the court, following the grant of a decree of divorce and on application to it by either of the spouses concerned, to make a pension adjustment order designating or earmarking the whole or part of the retirement benefit of a spouse who is a member of a pension scheme for payment, inter alia, to a dependent spouse or to a person for the benefit of a dependent member of the family.
Such an order would, for example, have the effect of preserving for a dependent spouse an interest in the member spouse's pension benefit and the proportion of the pension benefit which would be paid to the dependent spouse and other family member will be determined by the court. Subsection (3) has a similar effect to subsection (2) in so far as a contingent benefit under a scheme is concerned. A contingent benefit is a benefit payable under a pension scheme to a member spouse's dependants where the member dies before retirement.
Subsections (4) and (5) provide that, where a court makes a pension adjustment order under subsection (2), the spouse in whose favour the order is made may apply to the trustees of the pension scheme concerned to have the designated or earmarked portion of the benefit split from the main retirement benefit so as to provide a separate and independent benefit for that spouse.
The remaining subsections of section 16 deal with special circumstances where, for example, after a pension adjustment order is made by a court, a member spouse leaves a scheme or where a dependent spouse dies before pension benefits come into payment. It also deals with the provision of notification to various parties to proceedings and with various technical arrangements relating to the calculation and payment of pensions benefits.
The valuation and calculation of benefits and the manner in which benefits ordered by the court are to be applied and paid, will be in accordance with guidelines promulgated by means of regulations made under the Pensions Act, 1990. That is the approach which is provided for also in relation to corresponding guidelines for the purposes of the Family Law Act, 1995.
The question of what should happen to rights of succession following the grant of a decree of divorce is addressed in section 17 of the Bill. In the context of judicial separation, it is already possible for the court to make an order extinguishing rights that spouses have vis-a-vis each other. Where a couple divorce, the parties are no longer spouses and have no rights of succession. In compensation for that loss the court will be able to make provision for a spouse by using the various financial and property adjustment provisions in sections 12 to 16 of the Bill.
Where at or after the time of granting the decree of divorce, it is not possible to make adequate provision for a spouse, and that spouse has not married in the meantime, section 17 provides that the court may order that financial provision be made for him or her out of the deceased spouse's estate. In considering whether to make an order under this section, the court must have regard to any lump sum payments or property or pension adjustment orders made in favour of the applicant, or any devise or bequest made by the deceased spouse to the applicant spouse. The provision which the court can make under this section 17, together with any lump sum payments or property or pension adjustment orders already made, must not exceed in total the share, if any, of the applicant in the estate of the deceased spouse under the Succession Act, 1965, to which the applicant was entitled or would have been entitled if the marriage was not dissolved.
Section 18 provides that, where a court makes a secured periodic payments order, a lump sum order or a property adjustment order, it may, additionally, at any time thereafter make a further order for the sale of any property in which either spouse has a beneficial interest. The order for sale may include provisions in relation to the manner and time of sale and disposal of the proceeds of sale. The power to order the sale of property may not be exercised so as to interfere with a right to occupy the family home conferred by virtue of Part III of the Bill nor will the power apply in relation to the family home where either of the former spouses, following remarriage, lives with his or her current spouse.
Important criteria are contained in section 19 for the making of court orders under Part III in support of spouses and dependent children. The courts will have flexibility, on the basis of the circumstances of each case before it, to determine an equitable division of income and property. Subsection (1) sets down a general criterion that provision must be made for the spouse and any dependent member of the family as is proper having regard to all the circumstances of the case. Subsection (2) contains more specific criteria in relation to such matters as a spouse's income, earning capacity, property and other financial resources, likely future financial needs and obligations, age and conduct of the spouses and accommodation needs. The court must take into account any contribution made by either spouse to the financial and other resources of the other spouse and any contribution made by either of them by looking after the home or caring for the family. Subsection (4) sets out specific criteria to which regard shall be had by a court in deciding whether to make an order in relation to children which take into account financial and accommodation needs and other matters.
Section 21 lists the orders under Part III which, on the application of either spouse, can be varied, discharged or suspended by the court taking into account any change in circumstances. Variation orders are also subject to the criteria for the making of orders which are set out in section 19.
Section 23 provides that in ordering maintenance under the Guardianship of Infants Act, 1964, the Family Law (Maintenance of Spouses and Children) Act, 1976, the Family Law Act, 1995, and under this Bill, a court may determine the method in which such payments will be made. This provision will give the court a degree of flexibility as to the form that the payment might take, whether by a direct debit or otherwise, and will further strengthen the powers of our courts to enforce maintenance payments.
Section 24 provides that where an appeal is brought from an order for payment of maintenance under the Bill, or any other legislation of the kind I have mentioned in relation to section 23, the operation of the order will not be stayed unless the court that made the order, or to which the appeal is brought, directs otherwise. This amendment will help to make clear the position that will in future operate in the event of an appeal from an order of maintenance and the balance of advantage will operate for the most part in favour of the dependent spouse and children.
The remaining section of importance in Part III is section 25 which provides for the situation where a couple seeking a divorce have already obtained a judicial separation. Orders in relation to the separation will be continued in force after the divorce unless the court orders otherwise.
Part IV of the Bill deals with the treatment of income and capital taxes of persons following a divorce and those provisions correspond with provisions already contained in the Family Law Act, 1995. Section 30 provides that payments of money made pursuant to an order under the provisions of the Bill shall be made without deduction of income tax. A pensions adjustment order does not come within the ambit of this section.
Section 31 provides that in certain circumstances couples who obtain a decree of divorce may, similar to separated couples, opt for joint assessment for income tax purposes. To avail of the provision, both of the parties to the dissolved marriage must be resident in the State for the relevant year of assessment and neither spouse must have remarried. The net effect of the section is that, through opting for joint assessment, where one party to a dissolved marriage is paying enforceable maintenance for the benefit of the other party, the party making the maintenance payment, and not the recipient, will bear any tax referable to the maintenance payments. If the recipient has no other income, the paying party will be granted the personal allowances and tax bands appropriate to a married person. If the recipient has other income, the tax assessed on the parties will be apportioned between them but the tax referable to the maintenance payments will still be borne by the payer.
Sections 32, 33, 34 and 35 of the Bill exempt property transfers between former spouses on foot of a court order governing a divorce settlement from capital gains tax, capital acquisitions tax, probate tax and stamp duty. In effect, any property transfers related to the divorce will be exempted from all capital taxes, provided that they are covered by a court order. However, in relation to any subsequent property transfers not consequent on the divorce, the divorced couple will be treated as strangers for capital gains tax, capital acquisitions tax, probate tax and stamp duty purposes.
Part V of the Bill deals with court jurisdiction and the power of the courts to seek social reports under arrangements with health boards and the probation and welfare service on issues affecting the welfare of parties to divorce proceedings, including children. As in the case of judicial separation, the Circuit Court will be the main court to deal with applications for divorce.
Section 44 to 50 contain minor amendments to legislation such as the Maintenance Act, 1994, the Family Law Act, 1995, and the Powers of Attorney Act, 1996, which are, in large measure, consequential on the introduction of divorce.
I have made clear to the House on a number of occasions that the position of children under our laws as they stand is of special importance and that constitutional and statutory provisions and administrative policies reflect that. Recent legislation reflects that policy. Each of the 18 Bills passed since 1986, to which I referred earlier, relate to children in one way or another. I do not imply that nothing more needs to be done. This Bill has strong protective and support measures in the interests of children based on experience of operation of existing laws. I assure the House that the extensive provisions which already exist in relation to children are continually being reviewed and will be updated as necessary under the Government's programme of renewal. As part of the legislative programme in hand in my Department, progress is being made on new measures to update the law on guardianship and on the evidence of children.
The introduction of divorce will place extra demands on our courts, on legal aid and on counselling and mediation services. Health boards and the probation and welfare service will be affected because of the requirement to provide social reports, if called upon to do so, by the courts in divorce proceedings. The House will be aware of the strategic plans being developed in recent years in each of these areas to meet the demands of the growing area of family law cases. Significant resources have and are being provided in all of the areas concerned. In so far as my own Department is concerned the record in relation to funding of legal aid, mediation and counselling should not leave any Member of the House in doubt about my commitment and that of the Government to those services. That commitment will extend to dealing, as necessary, with the demands of a divorce jurisdiction. I know that other Ministers with other responsibilities in the relevant Departments of Justice, Health and Social Welfare will continue to have the same commitment in relation to the various social services in support of families.
I look forward to debate on the Bill. I hope I have helped the House to put the Bill in context and to elucidate and inform it on the more important provisions. The provisions are not, for the most part, unfamiliar because they in substance correspond with provisions in the Family Law Act, 1995, which we discussed not so long ago. However, this Bill provides, for the exercise by our courts of jurisdiction to grant decrees of divorce. On its enactment, it will give effect to what the people enshrined in the Constitution, the right of persons in certain irreconcilable circumstances to have their marriage dissolved by our courts and to remarry, if they so wish.
I commend the Bill to the House.