The main purpose of this short but important Bill is to provide for validation of marriages where the three months' notification 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. The Bill also avoids 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 in the Bill to make some useful technical changes to the law in relation to barring orders granted in the case of cohabitants, to irrevocable powers of attorney and to disclaimers of interest in cases of intestate succession.
Section 32 of the Family Law Act, 1995, requires parties to a marriage to notify in writing 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 notification 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. 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, and the merits were discussed in the Government's White Paper on Marital Breakdown published in 1992. In 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 the period February 1994 and September 1995, and received a broad welcome in 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 in relation to the administration of the Office of the Registrar-General of Births, Deaths and Marriages, informs me that considerable steps were taken by the Office of the Registrar-General to advise the 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 newspapers and in the Sunday newspapers, in 40 provincial newspapers and some magazines and there were advertisement slots on RTÉ 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, and training courses for registrars were also held.
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 the vast majority of cases. I understand that between May 1996 and April 1997 notifications of intention to marry have been received in respect of 17,500 marriages approximately. Of that total, 167 cases were referred to the Office of the Registrar-General for review. While 42 cases were found to be in order, 25 cases failed to give the required three months' notification. The Registrar-General is confirming with the 25 couples concerned that their marriages cannot be registered. Some 57 cases to date have been identified as cases where notification was given in error to a registrar for a district other than the district in which their marriage was to be solemnised. A further 43 cases are currently being examined to establish if the requirements of the Act have been met. Where problem cases have been identified, the registrar has communicated with the couples concerned.
I think it important to emphasise that the substantive requirement under section 32 of the 1995 Act of three months' notification of intention to marry is not in any way being affected by this Bill. Neither does the Bill provide for the validation of marriages where parties failed to give notification in time or failed to give any notification. On the passing of this Bill it is the intention of the Registrar-General to clarify the position, in writing, for all couples where doubts have arisen.
Of course, circumstances can arise where the notification requirement under section 32 could present difficulties for the parties. In recognition of this fact, it is provided in section 33 of the 1995 Act that a person can apply to the court for an exemption from the notification requirement. In line with the substantive nature of section 32, exemptions by the court shall not, however, be granted unless the applicant shows that its grant is justified by serious reasons and that it is in the interests of the parties to the intended marriage. I think it important to reiterate that, notwithstanding the passing of this Bill, unless a couple has obtained prior exemption from the three months' notice requirement, their marriage is not, and will not, be valid in law if they failed, or fail, to give three months' prior notification of their intention to marry.
The Bill deals with those cases, 57 in all so far, where notification was given to the wrong registrar. In those cases it is reasonable to assume that it was the intention of the parties concerned to comply with the law. The notifications were, unfortunately, placed with the wrong registrar and this was not discovered in time for all concerned to do anything about the situation. 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. I have shared in that concern and, in consultation with the Minister for Health, indicated my intention to bring forward amending legislation. The Bill implements the commitment both of myself and the Minister for Health on the matter.
I now turn to the specific provisions of the Bill. Sections 2 and 3 amend the Act of 1995 in relation to the notification of intention to marry provisions in a number of respects. Section 2(1)(a) of the Bill inserts a new subsection (5) into section 32 of the 1995 Act which will require health boards to pay fees to certain registrars of marriage, in accordance with regulations prescribed by the Minister for Health, to compensate them for processing the marriage notifications they receive under the section. The registrars concerned comprise about half of all registrars and their remuneration at present is made up of fees paid by the public and by the appropriate health board for each registered marriage.
Section 2(1)(b) of the Bill, 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 1995 Act. 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 by that registrar 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 by that registrar to act on his or her behalf.
Section 2(2) of the Bill introduces a degree of flexibility as regards the jurisdiction of the Circuit Family Court to deal with applications for exemptions from the marriage notification 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) of the Bill provides that applications for exemption from the marriage notification requirement may be heard by the judge of any circuit.
Section 3 of the Bill is the provision which deals with the validation of marriages where notification was given to the wrong registrar. Subsection (1) provides for validation where notification 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 notification of marriage requirements 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 will not arise in the future because of the provisions in section 2(2) of the Bill which allows the judge of any Circuit Family Court to grant exemptions.
These are the main provisions amending the rules on notification of intention to marry. I now turn to the amendments in relation to other areas of the law that are provided for in sections 4, 5 and 6 of the Bill.
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 my 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 of the Bill 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 of the Bill amends the law in relation to certain powers of attorney. The Powers of Attorney Act, 1966, 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 on 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 that the only powers which ought to be irrevocable should be those given by way of security, for example, to protect a mortgagee in the event of default in repayments by the donor of the power. The section applies to powers of attorney whenever created.
When the 1996 Act was introduced, it was widely understood that there were no cases where powers of attorney had been granted otherwise than by way of security. However, my attention 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. I am 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, I have 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 me by the 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.
I believe that Senators will appreciate that, while the provisions in the Bill will possibly affect only a small number of persons, they are, nonetheless, important in their own right and for the persons concerned. I am happy to respond, by way of this Bill, to the various submissions made to me on these issues. I commend the Bill to the House.