Amendment No. 81 in the name of the Minister. Amendment No. 89 is an alternative. Is it agreed that amendments Nos. 81 and 89 be taken together? Agreed. Acceptance of amendment No. 81 involves the deletion of section 12 of the Bill.
SECTION 9.
Amendment No. 80 not moved.
Section 9 agreed to.
NEW SECTION.
Chairperson
I move amendment No. 81:
In page 8, before section 10, to insert the following new section:
"14.—If while a decree of judicial separation is in force either of the spouses dies the surviving spouse shall be precluded from taking any share in the estate of the other spouse as a legal right or on intestacy.".
The longstanding policy in our law is that there are fixed rules of inheritance. The Succession Act, 1965 gives a spouse a specified share in the estate of the other spouse as a legal right or on intestacy. The Act is also specific as regards those who may be precluded from rights of succession: subsection (2) of section 120 precludes a spouse who deserts for two or more years prior to the death of the other spouse from taking any share as a legal right or on intestacy. Under the same subsection a spouse automatically loses rights of succession when a decree of divorce a mensa et thoro is granted against that spouse. That spouse, under existing separation law, is one who has committed adultery or is guilty of cruelty or unnatural practices.
Section 30 of the Bill proposes the repeal of section 120 (2) of the 1965 Act. One effect of this is that a spouse who repudiates the marriage by deserting could have rights of succession. I am opposed to that change. I consider that there should be no change in the present position on desertion as a bar to statutory rights of succession. I shall be returning to this matter when section 30 comes up for consideration. However, it is relevant to this amendment No. 81 which concerns sections 10 (1) (g), 10 (4) and 12 of the Bill.
The Bill proposes in section 10 (1) (g) and 10 (4) that either spouse in separation proceedings may seek an order extinguishing or reducing the spouse's rights of succession under the 1965 Succession Act. This of course changes the policy of the Act as regards rights of succession following a separation decree against a spouse. The effect of section 12 would be that an order under section 10 would only be made by the court if at the same time it makes a lump sum, property transfer or settlement order in favour of the applicant spouse. The only bar to the making of an order for payment of a lump sum or an order in relation to property would be the existence of gross matrimonial misconduct by the applicant spouse. This is not defined in the Bill and is a matter that would have to be pleaded by counsel and decided in each case by the court. Proceedings in such cases will inevitably be contentious. In this regard I must point out in passing that the existence of this provision shows up the fallacy of the argument that this is a no-fault Bill that removes acrimony from judicial separation proceedings.
There are further serious objections to sections 10 (1) (g) and 12. The court may decline to make a lump sum or property order for the benefit of a dependent wife in favour of allowing her to keep her succession rights to the husband's estate. In such a case the husband may subsequently dissipate his assets leaving no estate against which the dependent wife can claim. This danger would exist also where under the Bill a court varied succession rights. In my Second Stage speech I indicated that the question of succession rights following the granting of a decree of judicial separation needed to be carefully considered to see how best a dependent spouse could be protected as fully as possible. I am satisfied that the Bill would not achieve that aim.
My amendment proposes a different approach to that in the Bill. I propose that on the granting of a decree of judicial separation each spouse would be precluded from taking any share in the other's estate. This is in line with a recommendation of the Law Reform Commission who analysed in detail the question of succession rights. At first sight this approach might appear to change somewhat the existing law and might even appear to be unfair to the spouse who is not guilty of any matrimonial misconduct. However, it is important to bear in mind that under the new separation proceedings the court will have extensive powers to make suitable maintenance and property orders. It may order maintenance to be secured on property or order the allocation of a fund out of which the maintenance can be paid. And in subsection (2) (g) of my amendment No. 93 I am proposing that the court should have the obligation placed on it to take account of loss of succession rights when exercising its powers to make orders relating to maintenance, lump sum payments and property owned by the spouses, including the family home.
It must be remembered that following the enactment of this legislation a new situation will prevail. The granting of a decree of judicial separation will no longer depend on there being fault-based grounds. A decree may be granted on the non-fault ground of separation by agreement also. The court would not necessarily be dealing in the new separation proceedings with a respondent who is "guilty" or is "unworthy to succeed" as is understood under the law at present. Indeed, the reason some spouses will have come to court is because they cannot agree on the terms of separation. The practice whereby most separating couples resort to comprehensive deeds of separation rather than involve the courts should of course continue to be the most appropriate procedure even after the enactment of this Bill and we should do nothing that would discourage couples from separating by consent by means of separation deeds. There is a serious danger that sections 10 (1) (g) and 12 of the Bill might well act as such a discouragement if, in so far as relates to succession, the statute law were to depart from established practice. As Members of the committee will probably be aware it is a common condition in the standard form of separation agreement used by separated persons at present that each give up succession rights to the estate of the other.
Furthermore, since one of the main purposes of a deed of separation is the achievement of certainty and finality in financial matters it is reasonable to assume that separated or separating couples would wish, if they cannot agree on the terms of their separation, to also achieve certainty and finality in any court orders that are made and would not want to involve themselves in unnecessary acrimony or litigation about succession rights in the future.
I should like to say also that in amendments Nos. 99 and 101 which we will be discussing later I am proposing to remedy a significant flaw in the Bill and that is the absence of any provision rendering void agreements or transactions intended to frustrate the making of financial relief orders. The dependent spouse under my amendments would be as fully protected as possible. That might not be the case under the Bill as it stands. The dependent spouse would have to live out her life in the hope that the estate of her husband is not dissipated at the time of his death.
In case of any doubt on the matter, I should like to point out that, under my amendments and indeed the Bill as it stands, children will under the Succession Act remain entitled to inherit on the separation of their parents and will remain to have proper provision made out of the estate where such proper provision has not been made by will or otherwise.
I strongly commend to Deputies my amendment No. 81 which is aimed at strengthening the financial position of the dependent spouse as far as possible.
I briefly want to comment on remarks attributed to Deputy Shatter quoted in this morning's Irish Independent, in particular his statement that under my proposals the court will tell a wife who has obtained a judicial separation “that she will not be able to receive any substitute assistance in this situation.” If that statement is correctly attributable to Deputy Shatter, I believe he is misleading the public in relation to my proposals. He should know that his own proposals may, in fact, leave wives destitute where the courts decline to make a property order in favour of allowing wives to retain succession rights. Clearly, on the basis of my amendments, the court will have to do justice to both parties at the time of the granting of the decree, and it will have to take into account any loss of succession rights.
I believe that it should go from this committee that, rather than protecting the financial position of a dependent spouse as fully as possible, Deputy Shatter's Bill, as it stands, is putting her position in jeopardy because clearly a spouse could — and it does happen unfortunately — settle his property in such a manner as to prevent the other spouse from succeeding to his property.
I feel it might be more useful if we continued the debate on the section. My amendment is to amend the section as it is in the Bill and it might be more helpful if we continued with the Minister's amendment.
The amendment the Minister has tabled in this provision is the most extraordinary amendment of all the amendments we have had to deal with on this Bill. I listened with great sadness to what the Minister has just described as the great benefits he sees in his approach, and with a great deal of puzzlement as to the nature and competence of some of the advice the Minister is getting. It seems to me quite clear that the people who are responsible for drafting many of the amendments the Minister is tabling have absolutely no understanding of how the problems that arise upon a marriage breaking down are resolved in practice in the real world in Ireland in the 1980s.
On a point of order, the practice over the years in any forum connected with the Oireachtas has been that we do not throw spears or arrows at the civil servants in any Department for the work they are doing. If the Deputy has difficulty in accepting my amendments or accepting the arguments I put forward in my amendments, then I offer myself to the Deputy as the person at whom he should throw the spear. He did not have any hesitation in doing it with John Foley in the Irish Independent this morning and he should not back away from doing it now in my presence.
Chairperson
The Deputy, without interruption please.
I thought I was doing the Minister the justice of assuming that these amendments may have been tabled by him without fully understanding the implications.
That is an old trick.
If the Minister wishes to accept full responsibility for what he is now tabling I am more than happy to deal with them along those lines. For those who may not be familiar with it, I want to explain the current legal position, to explain what this Bill does and to explain the extraordinary impact that the Minister's amendment would have. The current legal position is, as the Minister correctly says — and let us deal with it in the context of wives — that a wife has a legal right to a share in her husband's estate. If a husband currently makes a will and leaves no property to his wife, the wife has an automatic legal right to one-third of his property if there are children, or to one-half of his property if there are no children. There is a provision in the Succession Act of 1965 which enables husbands and wives to renounce or waive their inheritance rights if they wish to do so. Where they do that they are each free to leave their property to whomsoever they wish without fear of a challenge by their surviving spouse. The only thing the Minister was correct in saying is that both the way this Bill deals with matters and the way his amendments deal with matters will not affect succession rights of children so there is no need to address that issue.
When a marriage breaks down at present, a variety of different things can happen. Under the current law a wife who can prove cruelty or adultery against her husband may bring separation proceedings and may succeed in getting a decree of separation. In most cases wives are financially dependent, and when the wife gets her decree of separation she will get a maintenance order or an alimony order for her support. The husband will lose his inheritance rights to her property and she will retain hers. It is important that she does because, under the current law, the day her husband dies, she will cease to get alimony or maintenance, and she will most times be dependent for her future security on her succession rights. That is the current law.
In the case of a marriage breaking down and couples trying to negotiate a separation agreement, what the Minister said was so inaccurate as to suggest — as the Minister is taking responsibility for this approach — that he was deliberately trying to mislead those people both in this House and outside who may not be fully acquainted with what happens in practice. The Minister said that in most separation agreements husbands and wives waive their inheritance rights. That is not true. What happens in most instances where a wife is dependent and the husband owns property is that the husband's lawyers will try to force the wife into waiving inheritance rights because it suits the husband; he wants to be free of having to leave any property to his wife on his death. The wife's lawyers will seek to ensure that the wife retains a degree of security for the future in the event of the husband's death.
Currently, if the wife is properly legally represented, the only circumstance in which she will waive her inheritance rights is if she gets adequate compensation that gives her future security in the context of the deed of separation that is completed. For example, it might be agreed that the family home will be transferred to the wife, or it might be agreed that the inheritance rights will be waived subject to the provision that the wife will get a guaranteed capital sum from some form of life policy on the husband's death and if that policy does not exist on the husband's death the wife's inheritance rights will revive.
A large number of separation agreements are concluded in which both spouses retain their inheritance rights either because there is no property that can be transferred or no capital sums available to give a wife future security or because, for example, the family home might be in joint names and the couple may wish to keep it in joint names. Indeed in the future, in the context of court proceedings under the separation agreement, there are many circumstances that could arise in which a home that is in one spouse's name may be placed in joint names but not necessarily transferred into the sole name of the dependent spouse.
Under the current law, it is not the case that in most separation agreements wives waive inheritance rights. I would be surprised if more than 40 per cent of separation agreements concluded contained waiver of inheritance rights provisions and I would suspect, if anyone could do such research, it would be a fewer number, though I would have to admit as a lawyer that I have seen separation agreements concluded over the years where wives have waived inheritance rights in circumstances in which they clearly should not have done and in circumstances in which they have been legally vulnerable to being left destitute when their husband dies and ceases to make maintenance payments.
The Minister talks about the need for certainty in the law. Under the current law a decree of divorce a mensa et thorowill end inheritance rights of one spouse. The Minister did not advert to the fact. He talked about desertion. In order for desertion to end inheritance rights one has to prove, following the death of one spouse, that there has been continuous desertion for two years immediately preceding someone’s death. As far as I am aware, there have only been two court cases since 1965 in which the courts have delivered judgments holding that someone has lost their inheritance rights due to desertion. That provision does not work, though it does make the law uncertain and uncertainty is apparently something the Minister wishes to remove.
The Minister suggests that if a wife was to retain her inheritance rights following the granting of a separation agreement, then the other spouse could engage in all sorts of legal acts to try to disinherit her by, for example, transferring property to other people or placing it in trusts. That is not something that results from this Bill. That is something that is happening at present. It has been happening for years. Any wife who does not waive her inheritance rights when her marriage breaks down and who retains them has to be advised that a husband who is particularly malevolent and wishes to leave her destitute may well enter into legal arrangements that will result in her inheritance rights being theoretical rather than real.
In the majority of instances, in practice, even after marital breakdown, that does not happen. It happens in some cases. In the majority of cases it does not. This Bill is designed to provide, as it is currently constituted, wives with protection against that. As the Bill is currently drafted it will allow the courts to make property transfer orders so as to ensure that wives receive protection. But there will be plenty of cases coming before the courts in which there may not be property around out of which property transfer orders can be made. There may not be capital sums. The overwhelming majority of couples who find themselves before the courts when a marriage breaks down live in a small semi-detached house somewhere in the country that is in either one or the other spouse's name or in joint names. The maintenance a wife gets is a separate item from the accommodation she has over her head.
The Minister's provision would produce the following impact. It would mean that every wife who went to court and succeeded in getting a decree of separation would automatically lose all her inheritance rights, whether or not the courts made property transfer orders, lump sum orders, or any other sort of orders. Any wife seeking legal advice who needed a decree of separation would have to be told that if she succeeds in getting her decree she will lose her inheritance rights. In other words, the possibility of being left destitute in five, ten or 15 years time would hang like a sword of Damocles over the head of any wife going into the courts looking for separation proceedings unless she was fortunate enough to be the wife of a very wealthy husband who owned a lot of property. That is why I have described this as a pernicious provision. I believe it is a correct description. This provision would undermine all the help that this Bill could extend to wives. It would leave every wife vulnerable to being told that she may be left destitute in the future.
I do not understand how the Minister can say, with any credibility, that this provision is aimed at strengthening the financial position of dependent spouses. That is turning the actual impact of this provision on its head. I find this provision incomprehensible as a provision designed to provide financial protection for anyone. The Minister is right in saying that this provision mirrors something the Law Reform Commission suggested in a report they produced on separation laws, a provision which was rejected by the Oireachtas Joint Committee on Marriage breakdown for the very reasons I am now referring to. The Law Reform Commission, in its former embodiment, with its former membership was not unknown for producing rather peculiar suggestions in the area of law reform — in particular in the family law area — because some of the members of that commission had no particular insight into or understanding of family problems. I do not think that could be said about the membership of the current commission.
In the past the Oireachtas has rejected recommendations made by the Law Reform Commission. The Law Reform Commission recommended that, instead of abolishing the action of criminal conversation, we should extend it to everybody. That was rejected by the Oireachtas. This suggestion, that everyone who gets a decree of separation should automatically lose their inheritance rights, should be similarly rejected. It will leave every dependent spouse in a position of vulnerability. It will prevent vulnerable dependent wives, whose husbands do not happen to be in the higher income bracket and who do not have vast property holdings, from going to court to get the sort of protections they want. The Minister's provision for example, does not even allow the court to make an order in circumstances where there is no property that can be transferred. It does not even allow the court to make an order that a wife shall retain her inheritance rights. It makes no order of that nature at all.
Let us take another aspect of what the Minister is doing. When a couple come to court, marital difficulties can often involve all sorts of other family difficulties. For example, a husband might be an alcoholic. Not only might there be family problems but the business that he has run, which may have been successful many years ago, may have run down. He may be in grave financial difficulties. At the time when a separation decree is granted, the courts may only make a relatively low financial order in respect of maintenance because the husband has a low income and he has major personal problems. They may not be able to make any particular orders about property because the family home may be completely mortgaged. It may have no capital value of any description and there may be no property that can be transferred to the wife.
This Bill, as in the case of maintenance generally, allows maintenance orders to be varied. Everyone who has dealt with family problems knows that it is quite usual as circumstances change, as people get over their family breakdowns, as they re-organise their lives, that husbands who may have had business problems at the time when a decree was granted, five or six years later may solve them. Their overall financial position may greatly improve. As a result the wife will go back to court and look for more maintenance and get more adequate support than she may have done for herself and her children in the past. It may be that at that time the husband may own properties. At the time of his death he may own substantial property, although at the time when the proceedings took place there was no property to be transferred to the wife.
Are we saying that that wife should, for all time, be deprived of her inheritance rights? I think that is an extraordinary suggestion. Are we saying that wife should be left destitute when her husband dies? The effect of this provision is not to extend additional protection. It is to remove substantial protection that this Bill gives. It is to deprive the courts of exercising a discretion in a way that will guarantee that the protection is there and it is a provision which I believe will leave many wives in a far more vulnerable position than they are in under the current law.
This is introducing divorce by the back door. The very party that accused us of introducing divorce.
Deputy Wood's suggestion is that if you have divorce all wives lose their inheritance rights. Now Fianna Fáil want to suggest that if you have separation all wives lose their inheritance rights.
(Interruptions.)
Chairperson
Order.
I can appreciate that this is a very contentious and critical aspect of this Bill, succession rights. As this is my first meeting I want to point out that I was very supportive of Deputy Shatter in the Dáil. I spoke in the Dáil debate. I regret that we appear to be conducting this debate at two different levels, one here at committee level and one outside in the media. I appreciate that there may be many people hounding Deputy Shatter for comments. But I would have to say that this is the place to be critical. At the end of the day I do not think anybody here has a monopoly on what is right or wrong. I had hoped that we might be able to put our minds together collectively and come up with a very good Bill. Looking through the reports last night in preparation for this meeting I was sorry to see so many references to what is happening outside. Having said that, I must support the Minister's statement that his proposals strengthen the financial position of dependent spouses. It is important to achieve finality in any court order that is made. Nobody here wants to see further litigation for either spouse about succession rights. The dependent spouse might have to live out her life in the hope that the estate of the husband is not dissipated at the time of his death.
According to section 10 (1) (g) the court may decline to make a lump sum or property order for the benefit of a dependent wife in favour of allowing her to keep her succession rights to the husband's estate. That is a very valid point. At the end of the day there may not be an estate against which the dependent wife can claim. That is the reality. I am convinced that the Bill does not fully protect the dependent spouse and the most vulnerable spouse. The Minister's proposals, as he has said, are in line with the recommendations of the Law Reform Commission in that, on the granting of a decree of judicial separation, each spouse would be precluded from taking any share in the other estate.
What Deputy Shatter fails to accept — he says he is talking about reality — is that we will have a new situation in the aftermath of this Bill and the courts will have extensive powers to make suitable maintenance and property orders. I appreciate that he has a monopoly in that area but he must address himself to the situation that will pertain after this Bill is in place. The reference to children is also valid that, under the Succession Acts, they remain entitled to inherit on the separation of parents. I think what the Minister has said here today is most significant. I am pleased that I am here for this aspect of the debate because it is a very critical aspect of the debate.
I am concerned about what I can only now consider to be the personalised legislation of Deputy Shatter. In the statement of the Government's intentions with regard to marriage, separation and divorce in June of 1986 the previous Government decided as follows, and I would like to quote what the previous Government said.
Chairperson
Deputy, could you confine yourself to the amendments?
(Interruptions.)
Chairperson
Deputy O'Donoghue without interruption.
In relation to the succession rights of spouses, the statement of the Government's intentions in June of 1986 reads as follows:
"Under existing law when a decree of judicial separation is given against a spouse that spouse loses succession rights. At present also it is common practice when couples enter into a formal separation agreement that each renounces his or her succession rights to the estate of the other. Spouses would each lose succession rights to the other on divorce but the Court will have the obligation to make such orders as may be appropriate in the circumstances to ensure that the dependent spouse is adequately protected and the legislation will be so framed to enable the Court to take into account loss of succession rights arising from a divorce."
You opposed that.
It goes on:
"The Court should be empowered to order that compensation be given where it is appropriate to do so."
It is now apparent that the previous Government in dealing with the question of succession——
(Interruptions.)
Chairperson
Order please.
The document deals with marriage, separation and divorce and it is quite apparent from that document that the previous Government's intentions in relation to succession rights were that, in the event of there being a judicial separation the succession rights would terminate. Deputy Shatter, on the other hand, seems to have taken a different point of view and has hijacked his own party's policy somewhere along the road, possibly to Damascus.
(Interruptions.)
I am adding a great deal of light.
Chairperson
Deputy, please confine your remarks to the amendment before you.
This is extraordinary behaviour.
It is extremely important that the personalised nature of the legislation becomes more personalised as the Bill is considered by this committee. It is important to point that out that Deputy Shatter's own party disagreed with him in June of 1986 in what he is saying today.
Nonsense.
And possibly still do.
(Interruptions.)
Would it be in order for me to point out that this is a Private Members' Bill we are debating and it arose out of a private Member presenting it to the Dáil? I think from that point of view we can acknowledge that it is a personalised Bill and get on with the argument or debate on this particular thing.
That is not correct.
I have come to all the meetings of this committee bar one and I cannot continue. I believe that this committee is bringing itself into disrepute by continuing this personalised campaign from Fianna Fáil and from Fine Gael and I believe the Chair should put a stop to it.
The only attack they can make is a personal attack.
The issue which arises in my view is whether or not it is right that a person should have succession rights if that person has committed some act which would not entitle that individual on all moral grounds to succeed to the other's estate.
(Interruptions.)
Chairperson
Order.
I want to ask a question.
Would it be right for example — Deputy Shatter is very good at answering all of these queries at the end — for an individual who deserted his wife 20 years ago and emigrated to Australia leaving his wife to cater for the children to succeed to his wife's estate? He could return in about 20 years time and the children of the union who expected to inherit their mother's estate could find that their father, who had been away for many many years, had arrived back and decided to claim a share in his wife's estate.
Extreme cases do not make good law.
I read the Bill and I do not think——
Chairperson
Confine your remarks to the amendment.
The Deputy is not extreme, but Deputy Shatter can be.
I do not think that would be fair to either the wife or the children. In my view it does not give to the spouse who has been deserted and the children the level of protection which they are entitled to expect under responsible legislation in this area. It is also clear, and in my view abundantly clear, that a spouse could conceivably dissipate his estate with a view to ensuring that his wife whom he may have deserted will not receive anything from his estate. A wife in that situation who possibly was not at fault at all could find herself penniless after her husband's death and I do not think one could agree that that would be the correct moral judgment to make. There is a duty clearly to protect these spouses as much as possible and there is a further duty to ensure that, where spouses believe that they wish to separate by consent, they are allowed to do so. Far from allowing them to do so the provision in the Bill in relation to succession rights literally drives people into court who might otherwise consent in order to benefit from the provision relating to succession rights. I take the view that that would not be right either.
The Minister has clearly stated that he is introducing what may well be described as a novel amendment in this legislation with a view to frustrating any attempt which would be made by a spouse to dispose of property with a view to ensuring that the wife or husband, as the case may be, would get as little as possible.
In conclusion, I take the view that the fairest and the most equitable way, is for the court to decide during the course of the proceedings, or at the termination thereof, percisely what property is to be transferred to whom and what lump sum should be given to one or the other. The matter should rest there rather than leave a degree of uncertainty which, in my view, could only create injustice in the final analysis.
Progress reported.
Business of Special Committee.
Chairperson
At this stage I suggest we suspend the sitting at 1 o'clock and resume at 2 o'clock. Until what time?
5 o'clock?
I think it is far too early to decide that. We should make as much progress as we can. Through the Chair, on the question raised by Deputy Taylor, about the suspension time in the afternoon, I suggest that we review the situation at 5 o'clock. We did have an informal understanding all along that we would deal with this Bill so that we would have this entire Committee Stage dealt with, that we would be ready for Report Stage, or have the way cleared for Report Stage at the start of the Dáil session.
On that issue, I noted from the minutes of the last meeting in June that the proposed sitting time for yesterday was from 11.30 a.m. until 5 p.m.
Some Member made reference to rural Deputies.
I do not think it would be reasonable to go much beyond that because Deputies have obligations or appointments but I am willing to sit another number of full day sittings.
I am available. I would happily stay on but I appreciate that some Deputies may have other arrangements. If we do not conclude today perhaps we could sit a full day next week to see if we could dispose of Committee Stage.
Perhaps we can discuss this in different groupings over lunchtime and come up with definite proposals. I would have no objection to sitting until 7 p.m. or 7.30 p.m. or 8 p.m. tonight. We originally planned to sit for two days this week but in deference to our colleagues we could not and that is very understandable and acceptable. I have other arrangements for next week but let us talk about it at lunchtime and see if we can work out something that is acceptable.
Chairperson
Is it agreed? Agreed.
Judicial Separation and Family Law Reform Bill, 1987: Special Committee.