I oppose this section. Having accepted that section 31, which repeals the jurisdiction of the High Court in divorce a mensa et toro proceedings stand part of the Bill it seems that a further reference to defences in relation to those proceedings is unnecessary. That said, I would not be against the introduction of a new section which would refer to certain specifics that should be dealt with. It does not follow that if you have already repealed divorce a mensa et toro that you then go on to repeal defences in association with it.
SECTION 32.
Question proposed: "That section 32 stand part of the Bill."
The only reason for doing this is that it was the experience in one of two other jurisdictions where they introduced overall reforming laws where separation laws, or indeed divorce laws, were replaced by a new set of laws that where they did not expressly get rid of these old defences judges started implying they could use them on the new grounds. In other words, they said: "These concepts were always used previously. This new Act has not removed them so, therefor, we can imply that they are still there." What I was trying to do was ensure that they are not still there. If we can keep section 32 as it is to deal with that aspect of the problem, I suspect the Minister may come back to us with an amendment to deal with the issues we were talking about a few minutes ago. I think this will probably ultimately be amended on Report Stage. However, I am anxious that it will not be removed because I would not like to create a situation where at some later stage judges could start importing these concepts into the application of section 2. We all know of legal situations in other areas where judges have been so inclined to develop the law.
I want to refer to amendment No. 102 which we dealt with earlier and which the Minister withdrew. It related somewhat to this problem. I said that I was unhappy that the law relating to proceedings for divorce a mensa et toroshould apply in proceedings for judicial separation and that that might lead to the subjugation of this Bill to the previous law. I take Deputy Shatter’s point on defences. I am not sticking on it — it just did not seem to follow.
Question put and agreed to.