I think it will be necessary to look at section 31 between now and Report Stage. Acceptance of amendments Nos. 44 and 46 involves at least deletion of subsections (1) and (2) of section 31 but it will be necessary to move a formal amendment to section 31. Acceptance of amendment No. 86, which I did not move, but in conjunction with amendments Nos. 44 and 46, would have involved the deletion of the section.
SECTION 31.
Question proposed: "That section 31 stand part of the Bill."
I accept that it will be necessary to have another look at that section on Report Stage. Because of the fact that some amendments have been accepted and today we will be opposing others it seemed futile for me to table an amendment to try and to clarify what the end product would be. All we can do is leave it as it is at this Stage and table an appropriate amendment to take into account the amendments accepted during the course of Committee Stage and the amendments that have been rejected. We will leave it in the Bill at present but it is clear they are going to have to be amended on Report Stage. I assume we will have no difficulty procedurally tabling amendments on Report Stage.
Question put and agreed to.
NEW SECTION.
I move amendment No. 111:
In page 15, before section 32, to insert the following new section:
".—(1) Collusion between the spouses in connection with an application for a judicial separation or, subject to subsection (2) of this section, any conduct (including condonation) on the part of the applicant shall not be a bar to the grant of a decree of judicial separation.
(2) Where an application for a decree of judicial separation is made on the ground of adultery and the respondent proves that the adultery was committed with the connivance of the applicant the court shall refuse the application.".
This amendment would replace section 32 with some changes. The section as it stands provides for the abolition of the defence of collusion, condonation, connivance and recrimination in regard to proceedings for divorce a mensa et thoro.The section fails to mention conduct conducing to adultery which is also a bar to those proceedings. There are also technical difficulties with the section in as much as it does not make clear what bearing the defences would have on the new action for a judicial separation. My amendment would take account of those matters, but, in addition, it would make connivance an absolute bar as it is at present.
There are reasonable grounds for retaining connivance as a bar on the basis that a person should not be allowed to benefit from his own wrongdoing. In other words, a spouse who has encouraged the other spouse to misbehave should not be in a position to use that behaviour as a ground for a decree of judicial separation. The Law Reform Commission considered that it should continue to be a bar to a decree. It was abolished in England some years ago but, significantly, it has been retained in Northern Ireland and in Scotland either as a discretionary bar or an absolute bar.
I have been considering this amendment from the Minister and I must say that it seems commonsense that someone should not go into court and make a complaint about a spouse committing adultery, if you have to use the old-fashioned jargon of the law, you can allege that they connived at it, although I wonder what anyone in the general public would regard the meaning of the word "connivance" in that sense.
It occurs to me that one of the obvious things about this Bill is that it is designed to deal with marriages which have truly broken down and if someone connives with their own spouse committing adultery and then goes to court to complain about it, it might be self-evident that the marriage has broken down in that people would not normally behave in that way. I assume that the Minister's intention is not to bar the granting of a general decree of separation but simply to provide that where an application for a decree of separation is made using the adultery provision as the reason for establishing irretrievable breakdown that adultery as such cannot be relied upon. In principle it would seem to be correct that someone should not, in the context of seeking a decree based on irretrievable breakdown, be allowed to rely on adultery if they have connived at it.
Because section 2 retained the concept of irretrievable breakdown of marriage, the way that subsection (2) of the Minister's amendment is phrased is as if we were dealing purely with adultery as a ground for marriage breakdown and not, irretrievable breakdown and proof of adultery. I would have no objection to subsection (2) provided it is amended in the light of the original section 2 of the Bill being retained. It might be sensible to use the old legal jargon that this be a "discretionary bar" as opposed to an "absolute bar". It may very well be that if a husband brings proceedings against his wife in those circumstances and the wife finds herself before the court and manages to prove to the court that she had committed adultery and the court is satisfied the husband had connived at it, the court might feel it appropriate generally that a decree be granted and the wife may be happy that a decree be granted.
I suggest that we should have another look at the drafting of this in the light of the contents of section 2. I suggest to the Minister that if we retain it — because in justice in some areas it should be retained — it would be correct that it should be a discretionary bar and not an absolute bar. As it stands at present it appears to be an absolute bar to the granting of the decree. A wife who is brought to court by a husband who has connived at her committing adultery should be entitled to say to the courts: "This is evidence that my marriage has broken down and I would like a decree."
I could go along with that and come back with an amendment on Report Stage.
Amendment, by leave, withdrawn.