Wednesday, 30 April 1986
Dáil Eireann Debate
From the commencement of this Act the domicile of a married woman shall be an independent domicile and shall be determined by reference to the same factors as in the case of any other person capable of having an independent domicile and, accordingly, the rule of law whereby upon marriage a woman acquires the domicile of her husband and is during the subsistence of the marriage incapable of having any other domicile is hereby abolished.
We agree entirely with this provision. As the House will be aware, prior to the introduction of this Bill we introduced the Conflict of Laws (Reform) Bill, 1985, which was taken here in Private Members' Time. The basic purpose of that Bill was to give a woman independent domicile, something the Fianna Fáil Party felt was very important and which could be done relatively simply to provide independent domicile for the woman.
We have a point of difference with the Minister in regard to the basis for the use of domicile as distinct from habitual residence. We used the term “habitual residence” in substitution for the term “domicile”, which constituted a more fundamental reform and one recommended by the Law Reform Commission. The Minister's response was to the effect that it involved a far-reaching reform, that it would be preferable to tackle that task at a later stage, perhaps when the matter of the referendum  had been dealt with. That is our position. While we agree with the Minister and support this section we would have preferred that the more fundamental task would have been embraced — that of substituting the term “habitual residence” for “domicile”. Accepting that the Government will not do that, we are prepared to go along with the provision of independent domicile for the woman, which is what the Minister is proposing in section 1. Therefore, we are supporting the section.
Dr. Woods: “The domicile a person had at any time before the commencement of this Act shall be determined as if this Act had not been passed.” Therefore, the domicile prior to the changes being made will remain as if the Act had not been passed.
Mr. Shatter: This section follows naturally on the new rules governing domicile and these rules will apply after the commencement of the Act. Personally I regret that this Bill has not been used as a vehicle to reform some of the more antiquated concept of domicile and how it is determined. Though I do not wish to  have an argument with the Chair in regard to the ruling, the amendment I tabled would deal with the oddity of the concept of domicile of origin, which is a classical example of the legal anachronisms this House has not been willing to deal with. Though I welcome the Bill and the establishment of independent domicile for married women and for married men, I deeply regret that there is not a good deal more in this measure than is in it. Section 3 could have been much wider by making domicile a more realistic concept than under present law. That opportunity has been lost and I am sorry it was not possible for agreement to be reached on the amendment I tabled.
Minister of State at the Department of Justice (Mrs. Fennell): As stated on Second Stage, this is a minimal provision to abolish dependent domicile and, following on that, to bring in new rules of recognition of foreign divorces. Following the abolition of the rule of unitary domicile, it was necessary to include a provision to decide what rules should apply to determining what the domicile of a wife will be on and after the commencement of the Act. The provision is to the effect that the new rules on the domicile of married women will apply in these cases. An alternative approach which is found in the corresponding British legislation, the Domicile and Matrimonial (Proceedings) Act, 1973, is that on the passing of the Act a married woman would retain the domicile she had immediately before the passing of the Act until and unless she had either reacquired her domicile of origin or a domicile of choice.
The problem with this solution is that rather than determine a person's domicile at a date after commencement by simply applying the new rules to a person's history and circumstances after that date, it imposes a statutory artificial domicile on a person which can only be shaken off by that person taking appropriate steps after the commencement. This implies that a person would have to take some action, rather than that he or she would just be  affected by the enactment of the legislation. It seems preferable, in accordance with the policy of the Bill, to adopt an alternative and treat a married woman for the purpose of her future domicile as if she had an independent domicile all along. In this way married women would be treated as to their future domicile in the same way, irrespective of whether they were married before or after the coming into force of the legislation.
(b) At any time when a minor does not have his principal home with either his father or his mother the domicile of that minor shall be the domicile of that parent with whom the minor last had his principal home.
(4) (a) The domicile of a minor whose mother is dead shall be that which she last had before she died if at her death the minor had her domicile by virtue of subsection (2) (a) of this section and has not since had a home with his father.
(b) The domicile of a minor whose father is dead shall be that which he last had before he died if at the time of his death the minor had his domicile  by virtue of subsection (2) (a) of this section and has not since had a home with his mother.
(6) In the application of this section to a minor who has been adopted, references to the father or mother of such minor shall be construed as references to the adoptive father or adoptive mother of such minor.”.
Unfortunately Deputy O'Rourke had to leave the Chamber to attend a meeting of the Women's Rights Committee at this time. I wish to offer her apologies and she hopes to be back before this debate concludes. I am sure that meeting is affecting some other Members who might have been interested in these sections.
The scheme proposed in the Bill is somewhat unsatisfactory. Following the Minister's concluding speech on Second Stage, I am surprised that she has not agreed to or made any amendments. The problem here is that the section leaves intact the general principle that the domicile of a minor is that of his father and attempts to adjust the position of the mother within that framework. It is not clear from the Bill how exactly the original common law rule and the new statutory provisions would co-exist. Inevitably, the courts would have to harmonise the two, probably following litigation. The approach which we are suggesting is to substitute for the general principle the amended section 4 in which we would provide a comprehensive code governing the domicile of a minor which, by providing clarity and certainty, makes it far less likely that litigation would inveitably flow from the approach being taken by the Minister.
Apart from these general observations, one would have to take exception to the drafting of this section. The phrase “and has no home with his father” would have to be deleted as it would create the effect that, if a minor had regular  overnight visiting with the father, the domicile of the minor would remain that of the father notwithstanding that the minor might be in the custody of the mother. It is necessary in our view to qualify the term “home” with the adjective “principal”, to achieve what I believe the Minister intends in this regard. For these reasons we have proposed in our amendment the substitution of a new section 4 for the present section. Subsection (5) would cover in particular cases in which there was an unmarried mother or an illegitimate child.
Our approach is an attempt to rewrite totally the father and mother into the situation where the home is partly with the father and partly with the mother as distinct from the Minister's approach of leaving the general rule of law in which the minor is taken to be domiciled with the father and making arrangements for a situation when the minor is with the mother. These are two different approaches to the one question. Even if the Minister were to find that our proposal required some further additions or amendment, that proposal subsequently would be seen to cater for the different circumstances which might arise.
Mr. Shatter: One of the things which depresses me most frequently in this House is that no matter which Government are in power the Minister of the day who is guiding a Bill through the House seeks to preserve his or her macho stance as the eminence grise— although that is not the correct reference to the present Minister. The Minister has to preserve the reserved expertise of his or her departmental officials as a matter of course. Deputy Woods party are as guilty of this as my party are. Amendments proposed, whether validly proposed or not, are rejected out of hand.
I fully support Deputy Woods' amendment in relation to this issue. It makes a great deal of sense. It makes a good deal more legal sense than does the proposal contained in section 4 as drafted, with all due respect to the Minister's Department. Deputy Woods' proposal seeks to set out the general law in relation  to the domicile of dependancy of a minor in a way which makes it as clear as possible. It does that in a way which gets over some of the basic flaws which exist in the departmental drafting of this Bill which is being supported by the Minister. Let me compare the two and indicate the reason for my taking of this view of Deputy Woods' proposed section. This is not a matter of great party political contention and perhaps we could consider whether it is a section which could be adopted without appearing to allow somebody either to score or lose on the political point operation carried on by this House.
That makes a great deal of sense. To translate it into the language of separations it means primarily that the domicile will be the domicile of the parent who has custody of the minor. The proposal in the Bill is that:
There is a difference between the principal home and having no home. Most people here would support the notion that, where marriages break down, it is important that the children involved retain relationships with both parents.  That is something both Deputy Woods and I agreed on as members of the Committee on Marital Breakdown. The home of the parent who has custody might be the child's principal home, but it is normal and usual that a child of separated parents has contact with the parent with whom he is not living, usually the father. That contact will often involve the child staying at the home of the father during weekends or holiday periods. Therefore, the child will still have a home with the father. It would appear from the Bill as drafted that the child would have to have no home with the father before his domicile could be determined to be dependent on that of the mother. That makes no sense.
Various reports have been produced in different jurisdictions on the law relating to domicile. We only have a short time to deal with this issue here and I shall not burden the House either by quoting from the working paper of the Law Reform Commission in this jurisdiction or from other reports produced in the UK and elsewhere. The language used usually in this context to deal with this issue is a reference to the principal home. When separation takes place, the child's domicile will no longer be solely dependent on that of the father but coincides usually with the domicile of the parent with whom the child has his principal home. This matter is not dealt with properly in the Bill. In the amendment proposed by Deputy Woods the issue is dealt with in a way that would add a greater degree of clarity than is the case in the Bill. With due respect to those concerned, I have no doubt that a departmental official, in order to preserve his original draft, will have the Minister given a brief to state that there is something grossly defective in Deputy Woods' amendment. If I should be proved wrong on that it will be the first occasion that I have witnessed in this House in recent time acceptance of an Opposition amendment. I never witnessed it either when Deputy Woods was Minister. I do not recall his ever giving way to a proposal from this side of the House.
 This is a very limited Bill but at least we should ensure that we are right in respect of those areas it touches on and not leave any ambiguity. We should not pass legislation which gives the appearance of extending rights to wives and mothers while leaving us in the position that no one will be sure as to whether such rights exist. Let us not have a Bill which leaves the law in a state of either greater or equal uncertainty with the current uncertainty. I cannot find any defect in Deputy Woods' proposal. I regard his amendment as rational, reasonable and sensible. I am not frequently as charitably disposed as that towards the Deputy's proposals.
Mr. Shatter: Possibly this is being damned by faint praise. I am not sure whether I am assisting him or creating greater difficulties for him by these comments, but it would seem that the provision in the Bill is far more defective than any defect that might be found in the Deputy's amendment. Consequently, I trust the Minister will accept the amendment in an uncontentious way and in the light of improving the Bill because this Bill requires a great deal of improvement if it is to improve the law in this area and clarify it and also if it is to remove some of the current anomalies rather than contribute to the creation of additional anomalies. I trust that what I am saying will be taken as a contribution to a piece of legislation which deals with an area with which I am very familiar. I work outside this House regularly with people who are affected by these laws. The next amendment is complementary to the one we are discussing so I trust, it, too, can be accepted.
Mrs. Fennell: I thank the Deputies for their contributions but, as Deputy Woods knows, these fairly technical and detailed amendments were tabled only late in the day before Committee Stage. The Second Stage of this Bill was concluded on 21 March and I am at odds to know why the Deputy waited all this time to  table such an amendment. There can hardly be reasonable examination when amendments of this kind are tabled so late. I suggest that Deputy Woods knew we were listed to be in the House this morning and also this afternoon. I regret the lateness of the amendment. It is not fair to anyone, especially those of us on this side.
I must oppose the amendment because I cannot see how the new section proposed would make any improvement to the section as drafted. The section produces a perfectly reasonable rule as to the domicile of the minor child whose parents are living apart. I need not repeat the explanation I gave on Second Stage. In any event, the amendment is defective in two respects. First, subsection (4) refers in two places to subsection (2) (a) but there is no subsection (2) (a). I presume what is meant is subsection (3) (a). More seriously, subsection (4) (b) in the amendment is contradicted by subsection (5). This is because subsection (5) preserves the present rule that the domicile of a minor whose father is dead is that of his mother but subsection (4) (b) provides that, in certain circumstances, such a minor's domicile shall be the domicile of his father, that is, the domicile of the father at the time of his death. Admittedly, provisions as to family law are difficult to draft without making some errors or without leaving room for improvement, but this is another reason for allowing the House time to consider amendments. As a matter of policy it seems right to preserve the rule that the domicile of a minor whose father is dead should be that of his mother though the child had the father's domicile up to the time of the father's death. For that reason I ask the House to reject the amendment.
Dr. Woods: The Minister might communicate with the Minister for Justice because he told me he wished to take first the Garda Síochána (Complaints) Bill and then these Bills later. I was making preparation in that direction. However at the weekend I was told that this Bill and the one dealing with nationality were being brought into the House this week,  one following the other. We do not have available to us all the resources to that kind of situation. With both Bills being taken today there is particular difficulty for us on these benches. Leaving that aside, that is how that came about.
Obviously, for some other reason the Minister wants to leave his Garda Síochána (Complaints) Bill aside for a while, and do not ask me the reason why. I do not mind and I will respond as well as I can, but I can only do that within my own capacity. That is the difficulty we have on this side. The amendments were put down yesterday. At least between yesterday and today there was some time. The Minister had an amendment to the Nationality Bill which we received with the Bill yesterday morning. Unfortunately, that is the way things happen on Committee Stage at times and it is not anybody's fault. It is a matter of getting time in the House and getting people together. The basic fault here this afternoon is not any of those things. It is the fact that we are taking the Committee and Report Stages together. I could leave the suggestions we have made in this amendment and say to the Minister of State: “We have put our case and ideas to you. Other Members have said that they think there is some value in what we are saying, even from your own side of the House. Have a look at these and come back on Report Stage with your own format of amendment.”
Deputy Shatter has stated that it is not usual to accept amendments from this side of the House. It is usual to withdraw them in the light of the Minister of State showing some consideration for the points which have been made. That is the normal procedure in this House. This leaves the Minister of State to come back on Report Stage with her own amendment embracing this point and adding to the overall comprehensiveness of the Bill. We are not able to do that now because of this order which insists that we take Report Stage with Committee Stage. I take it that is the position?
Dr. Woods: All remaining stages have to be taken at the end of this debate. It is not even a question of the amount of time from now until 7 o'clock. It is a question of the gap between 7 o'clock and Report Stage. There is no gap between the two and that is awkward even from the Minister's point of view. Even if the Minister accepts arguments made in the House or is interested in them, she does not have the flexibility or the possibility of doing anything about them. The Minister was foolish to allow the Whips to insist that these two should go through together. If it was the Minister's own choice to do that, I think it was a foolish one. It is not a good arrangement and it is not good for the House or the Minister of State.
If we are to do the job of an Opposition, without the parliamentary draftsman and without the legal back-up which the Minister of State has available to her we can only put forward the best version we can on that basis. The Minister of State would presumably consider this and come back having consulted the parliamentary draftsman and others. The Minister will have had time to cogitate on it herself. This was partly what Deputy Shatter was talking about. It is not just a question of the parliamentary draftsman saying one thing or another. The Minister has to consider whether what he might say is in the spirit of what the Minister of State and we on this side of the House want and whether there might not be a better way to meet it.
This section should read (3) (a) as the numbers have been changed. I presume the Minister would be able to make that change here on the spot without having to go anywhere else. We can regard that as an amendment to subsection (2) (a)  instead of subsection (3) (a) and it should not be a major undertaking. The second point the Minister made was in relation to subsection (4) (b) which states:
If we read subsection (3) (a) for subsection (2) (a), we do not need to go to the parliamentary draftsman or the vast legal store of expertise to put the legal point right. The position is quite clear. If the Minister of State is suggesting she feels the domicile should not be regarded in that way, I do not see why it should not be. Until the domicile is determined otherwise, then presumably it should be the domicile which the minor had at the time of the death of his father. Obviously, this is a situation that needs to be examined. Presumably, the court which will deal with the case will have to look at the domicile of that minor again. It may be that it will be suitable to have domicile with the mother in that event, or it may be that it might not be suitable to have domicile with the mother at all. The court might have to make proposals in relation to that. In any event, it seems reasonable that the domicile would be the domicile as stated here until otherwise determined. The point is to suggest that that is what the domicile would be until it is otherwise determined.
Mr. Shatter: I cannot take very seriously Deputy Woods's comments which I regard as somewhat disingenous. On the Order of Business today I made the point that I felt we could not adequately deal with this Bill by completing both Committee and Report Stages on the one day. It was Deputy Woods's own leader who indicated that he was agreeable to dealing with both Committee and Report Stages on the one day. As a backbencher I do not want to be caught in the crossfire of point scoring between the Government side and the front bench of the Opposition. I do not  believe this House can do a proper legislative job on legislation of this nature if the Whips on both sides of the House agree to have Committee and Report Stages on the one day. That might suit everybody to get business through, and it can often suit an Opposition spokesman as much as it suits a Government Minister.
The reality is that we are making a joke of the legislative process when we do that. We do it too frequently. This is a classic example. There are things in this Bill which need to be teased out. If it could be agreed by all sides that Report Stage could be taken on another day it could result in teasing out the problems we have in this Bill to the satisfaction of everybody both in achieving what the Minister would like to see achieved and in giving a degree of flexibility in dealing with this. Of course, we may end up having that subsequently through the Seanad amending it when it would have to come back to us which only makes the process more long drawn out than is necessary.
With a desire to speed things along one can often get there quicker walking than by running. This is symptomatic of a problem that has been created by the Government and the Opposition front benches agreeing through their Whips to have this type of ridiculous procedure. The point the Minister of State makes about Deputy Woods's amendment referring to subsection 2 (a) instead for subsection 3 (a) is something which I noticed this morning when I read the Deputy's amendments. I assumed that in a rational world — though rationality does not necessarily apply to what happens within this House — one could cope with amending that by subsection (2) (a) becoming subsection (3) (a). I did not realise that would be the major issue.
Deputy Woods's amendment about the principal home makes it quite clear on whose domicile a child is dependent. The original section is very poorly drafted and does not help to clarify the provision. The general principle of what Deputy Woods proposes is correct. In the  absence of acrimony people can agree that subsection (2) (a) means subsection (3) (a). Deputy Woods will probably say that when he was a Minister I used to come in here and get under his skin on occasions. I am sorry if I am getting under the skin of a colleague by saying this. Government Ministers, Whips, or those sponsoring Bills, be they Private Members' Bills or Government Bills, agree that this House should take Committee Stage and Report Stage on the one day. If sensible amendments are tabled to a Bill which deal with the subject matter of the Bill and on the assumption that some degree of expertise existed in the Department that drafted these measures, I presume it is not beyond the bounds of their ingenuity to explain the meaning of proposals or amendments so that the Minister is in a position to accept or reject them.
I do not accept the approach that because this was tabled a bit late we cannot understand it and therefore we will put it on ice. That is not the way Parliament should conduct its business. If we reject this amendment and if we cannot, by agreement on all sides, postpone Report Stage I have no doubt that this section will come back to this House to be amended after it is debated in the Seanad. If it does not, then this section will do nothing to clarify the law and resolve the ambiguities that currently exist.
Mrs. Fennell: Deputy Woods stated that in some cases where the child's father is dead the court might have to make some arrangement. A court cannot do anything about a child's domicile. Much of the discussion has been about the Order of Business and the agreement of business. Even though we have agreed to take all stages this afternoon, any valid or relevant points which arise will not be ignored and will be considered. The great expertise and considerable experience of Deputy Shatter are extremely useful in these debates. It is regrettable that we did not have his thinking on Second Stage when his points of view could have been  taken on board and considered for this stage.
Dr. Woods: On Second Stage various people made clear the problem in relation to a child having no home with his father and the difficulty that was created by that section. It was suggested that there would be a need for tidying up in that area when it came to Committee Stage. I mentioned that fact in my speech and I was surprised that the Minister did not take some action to tidy up that section and to make it clearer.
In relation to the question of Committee Stage and Report Stage, the Government order the business. We are subject to that at all times. I did not seek to have Committee Stage taken with Report Stage, especially when we had amendments down. The proposal for this certainly did not come from this side of the House, whatever about the other arrangements about business. Unfortunately, things become involved in the totality of arrangements about business, the conduct of business, what the Government will or will not do and what they will accept in terms of arrangements which are made. There are very limited circumstances in which there can be no difference between Committee Stage and Report Stage. Can I take it that subsection (3) (a) can be substituted for subsection (2) (a)?
Dr. Woods: The way we have approached this is the best way to approach a section. This is confirmed by Deputy Shatter's approach. I would like to say to the Minister that there is a certain amount of agreement and support for that approach in the House and ask her to come back on Report Stage with her own proposal to deal with this matter. If this is Report Stage as well as Committee Stage, which it is, then I will press this amendment because I will not have another opportunity to do so. I do not  think this Bill should go to the Seanad without putting those matters right or they may change it and send it back to us again. Perhaps the Minister is prepared to take some other view or make some other suggestion.
Mrs. Fennell: The point I made in replying to this amendment seems to have been missed by both Deputy Shatter and Deputy Woods. Subsection (4) (b) in the amendment is contradicted by subsection (5). This is because subsection (5) preserves the present rule that the domicile of a minor whose father is dead is that of his or her mother. Subsection (4) (b) provides that in certain circumstances such a minor's domicile shall be the domicile which his or her father had at his death. The policy behind the provision in the section is that there should be no change in the present legal position or common law whereby a minor takes the domicile of his father unless he or she has no home with his or her father.
Dr. Woods: Subsection (5) was included to deal with the situation where an existing rule of law applies in which, by dependence, the minor's domicile would be that of the mother. I was thinking of cases such as illegitimacy where the home of the natural mother is the basis for domicile. The Minister says that that is in conflict with the other subsection. It is in so far as it applies to those cases. Other cases which arise here are spelled out quite specifically. One case as described in subsection (4) (b) is where the father is dead and the child has not since had a home with his mother. Whether it is necessary to provide further clarification could be a matter of drafting to make quite clear that it applies to other specific cases. We are talking here about the existing rule of law, that the domicile of a minor is that of his father and we propose to substitute certain provisions,  including that to deal with a case where the father is dead.
It would take further examination and analysis to convince me that there is a major conflict in this case. Subsection (5) of my amendment is intended to deal with a case where there is a direct relationship with the mother and it may be possible to clarify that further. I think it is the right approach to take all these provisions as a group and it is a better alternative than the existing position. I am very anxious that we make that point before the matter goes before the Seanad. It would be preferable if the Minister would consider all these points and come back to us on Report Stage with her proposals.
Mrs. Fennell: I am happy that the Deputy on further reflection has realised there is a contradictory approach between subsection (4) (b) and subsection (5). I am sure he would not expect us to accept a flawed amendment.
The domicile of a minor whose father is dead shall be that which he last had before he died if at the time of his death the minor had his domicile by virtue of subsection (2) (a) of this section and has not since had a home with his mother.
There is a specific reference of dependence on his mother in subsection (5). For instance, in the case of illegitimacy the dependence is directly on the natural mother. I do not concede the degree of conflict the Minister appears to see in these subsections. I am not the only one who recognises the difficulties arising from the section. I can quote views given outside this House that state it is extremely badly drafted. The opinion is that it is not a question of a possible minor conflict but that fundamentally it is badly drafted and that a different approach should be taken. Most Deputies will have had a series of representations from outside groups who have taken legal opinion on the section. They could point to the ambiguities and uncertainties that arise from phrases such as “his home”, “a home”, “living apart” and so on. The general opinion seems to be that it compounds the confusion that already exists.
We come back to the basic matter, namely, that if we had a Report Stage later the Minister could reconsider the matter before that time. However, Report Stage will be taken at the conclusion of Committee Stage and in those circumstances as the proposal we have put forward is superior to that of the Minister I shall have to press the amendment.
Brennan, Paudge. Coughlan, Cathal Seán.
Fitzgerald, Liam Joseph.
Gallagher, Pat Cope.
Haughey, Charles J.
Burke, Raphael P.
Connolly, Ger. McCarthy, Seán.
Noonan, Micheal J. (Limerick West)
Wilson, John P.
Birmingham, George Martin.
Conlon, John F.
Cooney, Patrick Mark.
Cosgrave, Liam T.
Cosgrave, Michael Joe.
Deasy, Martin Austin.
Durkan, Bernard J.
Enright, Thomas W.
Farrelly, John V.
Harte, Patrick D.
Noonan, Michael. (Limerick East)
Sheehan, Patrick Joseph.
Tellers: Tá, Deputies V. Brady and Browne; Níl, Deputies F. O'Brien and Taylor.  Amendment declared lost.
Mr. Shatter: I move amendment No. 4:
In page 3, between lines 3 and 4, to insert the following subsection:
“(4) The domicile of a minor who marries shall cease to be dependent on the domicile of either his father or mother and such minor shall acquire an independent domicile.”.
I hope that this is an amendment that can be agreed in that it follows on from the changes which have been made under the Bill. Under the current law persons under the age of 18 years can marry with parental consent and persons under the age of 16 years can marry with the consent of the court. The Oireachtas marital committee recommended that the age of 18 years should be the minimum age for marriage but that, in certain exceptional circumstances, persons between 16 and 18 years should be allowed to marry. It appears that that recommendation is going to be adopted as it is referred to in the Government's statement of intent as to future legislation that accompanied the release of the Bill for a divorce referendum.
If we take it that a minor's domicile is normally dependent on that of his parents, without going into the difference between being dependent on a mother or a father, the problem we currently have and that is going to be with us after this legislation has been enacted is that if persons of 16 or 17 years of age marry, their domicile will remain dependent on that of their parents. They will not be able to acquire an independent domicile of their own until they attain the age of 18 years. To take an example, let us assume two 17-year-olds marry each other. Under the current law, before a  wife had an independent domicile, her domicile would be dependent on that of her husband and the 17 year-old-husband's domicile would be dependent on that of his father. That is the effect of the current law. It produced ridiculous consequences when the age of majority was 21 rather than 18.
The consequences that it now can produce and the number of people it can affect would obviously be relatively small but as a minor under this legislation is presumably an 18-year-old, as a result of the reduction of the age of majority, now someone of 16 to 18 can currently marry and someone between 16 and 18, except in certain circumstances yet to be specified in new legislation, will still be allowed to marry. It makes no sense to require that someone who has married has a domicile dependent on a parent. If a 17-year-old girl marries a 25-year-old man her domicile is dependent on her parents. If she was 19 she would preserve an independent domicile, the man under this legislation having independent domicile. If she is 17 when she marries her domicile will remain dependent on her father until she attains the age of 18. If a 16-year-old girl marries a 25-year-old man and she and her new husband emigrate to Australia, instead of the girl acquiring an Australian domicile her domicile will remain dependent on that of her father.
This is really a tidying up measure. It should not give rise to any degree of excitement. It is not a major issue. It is not going to affect many people. But I have a rather simplistic view which is that when we are dealing with legislation of this nature we might as well get it right and not leave legal ambiguities or oddities in existence simply because we have not contemplated them. I would hope that would be something lacking in contention that is acceptable and could be incorporated within the Bill.
Mrs. Fennell: I feel this amendment is unnecessary because the position is that under the provisions of the Age of Majority Act, 1985, section 2, a minor who  marries attains his or her majority. Therefore, he or she acquires the capacity to have an independent domicile.
Mr. Shatter: If the Minister is satisfied the provision will have this effect, I am willing to accept that. I have had a very short time to prepare for this measure and I did not have an opportunity to have a look at the Age of Majority Act. If that is the effect it has, I am willing to accept the Minister's comment.
Mrs. Fennell: I can assure the Deputy that in this instance the minor may change his or her domicile on marriage.
Amendment, by leave, withdrawn.
Question proposed: “That section 4 stand part of the Bill.”
Dr. Woods: As far as the section as a whole is concerned the Minister has not given us her final view. It has been pointed out on Second Stage, and again here, that there are confusing elements in this section. I expected the Minister to clarify the position on Committee Stage and I was surprised she did not introduce any amendments. She said this afternoon that she would consider amendments during the Seanad debate. What exactly is her position on the section as it stands?
Mrs. Fennell: At the risk of boring the House this has already been dealt with. The section has been debated and the issues raised have been addressed. If there is any specific point the Deputy wishes to raise, perhaps he would tell the House.
Mr. Shatter: I think the disagreement between the Minister and Deputy Woods is about whether Deputy Woods made a mistake in the amendment which was not supported by the House. I ask the  Minister to take on board the problem that arises from the absence of a reference to “principal home” in this provision. That is the major problem. Paragraph 4 (1) (a) reads:
the minor then has his home with her and has no home with his father,
We cannot change that paragraph today, but I urge the Minister to introduce an amendment in the Seanad. Deputy Woods's amendment seems to have given rise to some difficulty and the Minister seems to be unwilling to adopt that formula. I urge that section 4 (1) (a) be amended in the Seanad to read that the minor has his principal home with the mother and the reference to having no home with the father should be deleted. That would clarify the section and make it work. The absence of a change of that nature will leave this area of the law ambiguous and it will not be clear until a court has interpreted it. That would be regrettable. There are number of other matters which have to be gone through in this Bill and I do not intend to speak further on this section. I urge the Minister to consider amending this paragraph as I have suggested.
Dr. Woods: That is the main point I wanted to make. If the Minister is not prepared to amend the section on the lines I have suggested, perhaps she would tell us if she intends to deal with the principal home which arises under subsection (1) (a).
Mrs. Fennell: The points raised on all Stages of this Bill will be considered in the context of the Seanad debate but there is a difficulty with the principal home. It is not easy to define.
Dr. Woods: I do not believe we can beneficially spend any more time on this section. We have suggested what we regard as a more fundamental and better approach to this section as a whole, but the Minister is not disposed at this stage  to adopt that approach. She may consider this between now and the Seanad debate but there are clearly difficulties and confusion in the section as drafted. The Minister said it was her intention to consider all the points made in the course of the Seanad debate. We will have to wait and see what happens there.
This highlights the point we have been making that it would be preferable if we had a separate Report Stage, irrespective of the gap between Committee and Report Stages. The Minister would have an opportunity to consider the points made on Committee Stage and come back to this House with her proposals which, in a case like this, would probably be welcomed and passed quickly. As I said, we will have to wait and see what happens between now and when this Bill is discussed in the Seanad. On that basis we accept this section.
Question put and agreed to.
Dr. Woods: I move amendment No. 5:
In page 3, before section 5, to insert the following new section:
“5.—(1) The validity of a divorce, where one or both spouses were domiciled in the State, will only be recognised after the commencement of this Act if,
(a) both spouses were domiciled in the State in which the decree was granted, or
(b) one of the spouses was domiciled in the jurisdiction in which the divorce was granted and— (i) the other spouse submitted to the jurisdiction of the Court or tribunal which granted the said divorce, and
(ii) the divorce was not obtained for the purpose of evading the laws in force at the time the said divorce was granted, in the State where the spouse referred to in  paragraph (b) (i) of subsection (1) was domiciled.
(2) The onus of proving that paragraph (a) of subsection (1) of this section applies in any case shall rest on the party seeking recognition of the validity of the divorce in question.
(3) In the case where neither spouse is domiciled in the State, a divorce shall be recognised if, although not granted in the jurisdiction where either spouse is domiciled, it is recognised in the jurisdiction or jurisdictions where the spouses are domiciled.
(4) This section shall only apply to a divorce granted after the commencement of this Act.
(5) Nothing in this section shall affect a ground on which a court may refuse to recognise a divorce, other than such a ground related to the question whether a spouse is domiciled in a particular jurisdiction, or whether the divorce is recognised in a jurisdiction where a spouse is domiciled.
(6) In this section—
`divorce' means divorce a vinculo matrimonii,
`domiciled' means domiciled at the date of the granting of a divorce;
`State' means the area over which the laws enacted by the Parliament established by Bunreacht na h-Éireann have effect.”.
Section 5 deals with the recognition of foreign divorces. Subsection (1) reads:
For the rule of law that a divorce is recognised if granted in a country where both spouses are domiciled, there is hereby substituted a rule that a divorce shall be recognised if granted in the country where either spouse is domiciled.
We agree with the Minister in relation to the independent domicile of a woman. Our amendment will make the recognition of foreign divorces in this country easier. It replaces common domicile with  either domiciled and for the rule of law, divorce is granted where both spouses are domiciled. This was to be a protection for the family and the spouses.
We all know how this operated. Because the wife's domicile was dependent on the husband it was possible for him to go to a foreign country for a divorce and claim that the wife's domicile was a foreign country because hers was a dependent domicile. The rule of law at present is that both spouses should be domiciled in a foreign country and that rule covered the case I have just mentioned, but that is being changed by the Minister. She is introducing a rule that divorce will be recognised if granted in the country where either spouse is domiciled. The first wording was unjust to the woman who was at home, and could be seen to be unjust to her in certain circumstances but now, instead of doing away with that potential injustice, we are going to replace common domicile with the domicile of either of the parties. As I said, at present this can operate as an injustice to the wife. The Bill proposes to retain this injustice to the wife and to extend it to the husband. It is retaining the situation that arose because of the anomalous position whereby the wife was dependent on the husband, therefore this general rule of law in effect did not have to operate as far as the wife was concerned. This Bill is going to extend a similar provision to the husband.
To deal with that we have introduced this amendment to put in a new section instead of section 5 to provide that:
(1) The validity of a divorce, where one or both spouses were domiciled in the State, will only be recognised after the commencement of this Act if,
(a) both spouses were domiciled in the State in which the decree was granted, or
That is if the original intention of the rule of law which applies at the moment was met, in other words both spouses are domiciled in the State in which the decree was granted, and  (b) one of the spouses was domiciled in the jurisdiction in which the divorce was granted and— (i) the other spouse submitted to the jurisdiction of the Court or tribunal which granted the said divorce, and
This second spouse is still resident here and the husband, say, goes off to England or wherever, claims his domicile is there, establishes domicile there and then applies for a divorce which relates to his partner who is here. We are proposing that the other spouse would have to submit to the jurisdiction of the court or tribunal which granted the divorce. Paragraph (b) (ii) states:
(ii) the divorce was not obtained for the purpose of evading the laws in force at the time the said divorce was granted, in the State where the spouse referred to in paragraph (b) (i) of subsection (1) was domiciled.
It should not be possible for either the husband or wife to go off unilaterally to a foreign jurisdiction and claim a divorce without the other partner here consenting to recognise or submitting to the jurisdiction of the court or tribunal which is granting the said divorce. That was meant to pertain up to this time but because of the wife's dependent domicile it has not pertained as far as she was concerned. It pertained where a wife went away. If a wife goes over to England that would be difficult because her domicile is dependent on the husband anyway, but if she could establish her domicile there she would still have to relate to the fact that the husband should be domiciled in England also if the divorce was to be granted or considered. The Minister is making it quite clear that that divorce will be recognised if granted in the country where either spouse is domiciled, so it is an open situation without safeguards for the spouse who is still here.
What kind of safeguards will apply in the circumstances created here? Deputy Shatter in amendment No. 8 to section 6 is concerned about the same situation,  perhaps in a different way. He is concerned about the making of adequate provision for the spouse who is here and that in any arrangements made in any divorces granted these provisions would be made and the people properly catered for. What plans and proposals has the Minister to protect, guard and vindicate the spouse and family who are here when either spouse can go to a foreign domicile and get a divorce without the other spouse having to submit to the jurisdiction?
In our amendment, subsection (2) provides that:
The onus of proving that paragraph (a) of subsection (1) of this section applies in any case shall rest on the party seeking recognition of the validity of the divorce in question.
Therefore, it is to place the onus of proof on the party who is seeking the divorce. Our amendment continues:
(3) In a case where neither spouse is domiciled in the State, a divorce shall be recognised if, although not granted in the jurisdiction where either spouse is domiciled, it is recognised in the jurisdiction or jurisdictions where the spouses are domiciled.
This is to cover a situation where neither spouse is domiciled in the State and both are out of the State. It is a question of recognition in that instance. The number of people who might be affected by this would presumably be very small. For instance, a multinational director from, say, California, whose wife is from Canada gets a divorce in London and we would recognise that provided it is recognised in either one of their jurisdictions. I do not know how many multinational directors here might find themselves in that situation but I put that as an example of the sort of thing that can happen. The amendment continues:
(4) This section shall only apply to a divorce granted after the commencement of this Act.
(5) Nothing in this section shall  affect a ground on which a court may refuse to recognise a divorce, other than such a ground related to the question whether a spouse is domiciled in a particular jurisdiction, or whether the divorce is recognised in a jurisdiction where a spouse is domiciled.
Then we come to the definitions area which relates to subsection (7) of the Minister's proposal and we propose under subsection (6) that in this section:
`divorce' means divorce a vinculo matrimonii;
`domiciled' means domiciled at the date of the granting of a divorce;
The Minister's provision is “domiciled at the date of the institution of the proceedings for divorce”. There could be a difference between these two and perhaps the Minister will comment on that. We feel that the date of the granting of the divorce should be the relevant time.
The final point we have added which the Minister has not got at present is:
`State' means the area over which the laws enacted by the Parliament established by Bunreacht na h-Éireann have effect.
That is the amendment we are proposing. The proposal which the Minister is making in this section is that a divorce would be recognised if granted in the country where either spouse is domiciled, and in simple terms it means that either the husband or the wife can establish a domicile in England or somewhere else and this divorce would be recognised here notwithstanding the fact that the other partner may not have been aware of the circumstances of the granting of the divorce. It has been clearly seen that the present situation operates against the interests of the wife and can do her an injustice. The Minister's proposal does not seem to guard either spouse in these circumstances and could create a possible injustice to either spouse or the family. What safeguards does the Minister propose in this area if she is not willing to accept our amendment?
Mrs. O'Rourke: The Minister will remember that on Second Stage of the debate this section evoked the most robust comments from all sides of the House and many Deputies were worried regarding the effect it would have on the spouse left behind, so to speak, when his or her partner got a divorce in another country. We agree, as Deputy Woods said, with the concept of the removal of dependency but as it is the woman from whom the divorce is obtained in two out of three cases, how does the Minister propose to safeguard the rights of a spouse from whom a divorce has been sought and given in another country without the other spouse having any say in the matter? The underlying thrust of the Bill is to enhance the status of women by removing the element of dependency but if is a pity that in many instances it will take away from a woman's status because her rights under the Succession Act, Family Home Protection Act, 1976, and the Family Law (Maintenance of Spouses and Children) Act, 1976, will be affected if a divorce is obtained without her consent. I speak as if the abandoned spouse is a woman but, naturally, it would be the same in the case of a man. Because the thrust of the Bill is to elevate the status of women it seems strange that this section will have opposite effect and will mean that the rights of women domiciled in Ireland from whom divorces have been obtained abroad will be undermined. I hope the Minister will comment on women's rights in this situation.
Mr. Shatter: I do not want to revive an old argument that took place on a Private Members' Bill introduced by the Opposition Party but the amendment introduced by Deputy Woods is a re-hash of the principal proposal relating to recognition of foreign divorces except using the domicile term instead of the habitual residence term. It would not necessarily provide protection for dependent wives or husbands, if implemented, it would result in considerable ambiguity as to whether particular divorces were recognised in the context of section 5 (1) (b) which I believe is unworkable and would create a great  number of problems for many people. I have no doubt that the Minister has a lengthy brief as to why it is unworkable, I do not have to do that job for her, no doubt she will do it herself.
Deputy O'Rourke and Deputy Woods raised a more fundamental issue in this context because everybody is concerned about the recognition of foreign divorces and the consequences for dependent wives and children and, indeed, for dependent husbands. I regret that the Bill does not deal with that in any detail. My amendment is an essential one which would ensure that following the granting of a foreign decree of divorce, a dependent wife and children would still preserve their rights to go to the Irish courts where necessary to obtain maintenance for their support and protection for their position within the family home because, if a foreign decree of divorce is currently recognised, as it may be, or following the passing of this Bill is recognised here, the effect of the recognition of a foreign decree of divorce is under current law to eliminate the rights which a party to the marriage has to seek maintenance support under the Family Law (Maintenance of Spouses and Children) Act, 1976. It is also to terminate a property which has been the family home being properly called a family home within the definition of that term under the Family Home Protection Act, 1976, which can create real problems. We need to deal with the consequences and I do not think that Deputy Woods amendment helps because it creates considerable ambiguity as to whether some divorces are recognisable or not. If the principal wage earner, presumably the husband, is living permanently outside the jurisdiction of these courts, it does not necessarily assist the wife to tell her that her divorce is not recognised. We may assist her by ensuring that she has financial protection.
I hope that the Minister will be in a position to indicate, if not here then in the Seanad, whether the protections which I think are necessary can be provided. It is interesting to note that we have not tackled this problem in the House and it was not tackled in the Private Members'  Bill tabled by the Opposition Party before Christmas. Curiously, a country which we frequently criticise in this area but which can sometimes be more aware of the problems which exist are now addressing the problems in the West-minister Parliament in the Matrimonial and Family Proceedings Act, 1984. It is regrettable that the Bill does not deal with the consequences of the recognition of foreign divorce decrees for dependent spouses and children along the lines which I propose in amendment No. 8.
Mrs. Fennell: The objections raised mainly by Deputy Woods and Deputy O'Rourke on the grounds that it would create an injustice to a wife in relation to her husband getting a divorce in England without her consent apply under the present law. Deputy Shatter and Deputy O'Rourke referred to what one would call ancillary orders subsequent to and in recognition of foreign divorces. I am aware that an amendment dealing with that was ruled out but it was worthy of consideration. It will have to be considered in the future because of the terms of the new rules that will follow the passage of this Bill and in the context of the Government's statement of intent to bring in new legislation on family law dependent on the outcome of the referendum. I should like to assure the Deputies that this matter is not being overlooked or ignored.
I suggest to Deputy Woods that there are serious defects in his amendment. At the beginning the amendment refers to where one or both spouses were domiciled in Ireland and goes on to refer to cases where both spouses were domiciled in another country. One cannot be domiciled in two countries. Moreover, the amendment fails to provide a general rule to replace the present rule that a divorce is recognised in the State if it is granted in the country where the spouse is domiciled. The Government's Bill does this in section 5 (1) which provides that divorce shall be recognised if it is granted in the country where either of the spouses is domiciled. There is no corresponding provision in the amendment and the  omission is fatal. The amendment should be rejected for this reason, if for no other.
The amendment provides that, where one of the spouses is domiciled in the State and divorce is granted in the country in which the other spouse is domiciled, the divorce will be recognised in the State only if the spouse who is domiciled in the State “submitted to the jurisdiction of the Court or tribunal which granted the said divorce” and “the divorce was not obtained for the purpose of evading the laws in force...in the State”. There are at least three objections of substance to this rule. First, the result of the amendment would be that divorce which would be recognised under the present law, and the Bill, would not be recognised under the amendment. I shall give a simple example of a couple who are domiciled and living in the State, the wife deserts or leaves the husband and goes to live with another man somewhere else in the State while the husband moves to England and becomes domiciled there. If he or she gets a divorce in England it will be recognised here under the present law and under the Bill. Under the amendment if the husband obtained a divorce in England the wife could veto the recognition of the divorce here by simply refraining from submitting to the jurisdiction of the English court. That would be a wholly unacceptable restriction of the present law.
Secondly, there is no definition, as I mentioned, of the idea of submission to the jurisdiction of foreign courts which is rather vague. Finally, the requirement that the divorce should not have been obtained for the purpose of evading Irish law is too vague. The purpose of obtaining a divorce is surely to end a marriage. What Irish law would it be evading? There is nothing in Irish law to prohibit a person from seeking a divorce abroad. With regard to the points about protection of safeguards, I should like to point out that where applications are made for divorce in England it is broadly the experience that notice of proceedings of the case have to be given to the other spouse. Every effort is made to give this notice of proceedings. Where the wife's  abode is known the matter is simple but, if not, other means are attempted. It would be possible for the wife to go to England and contest the divorce, make her claim for maintenance, payments or settlement of property in the courts there. In that way she could have the facility for presenting herself and making her case.
With regard to the recognition of a foreign divorce I should like to refer to section 5 (6) which states:
Nothing in this section shall affect a ground on which a court may refuse to recognised a divorce, other than such a ground related to the question whether a spouse is domiciled in a particular country, or whether the divorce is recognised in a country where a spouse is domiciled.
It is for the courts here to decide whether a foreign divorce should be recognised and whether all the requirements have been adequately and properly fulfilled in getting that divorce. There is nothing automatic about it.
Dr. Woods: The Minister expressed the view clearly that our amendment would, in effect, give a wife a veto unless she consents. The Minister said that new, improved and comprehensive legislation and safeguards are expected to follow the referendum although we argue that they should be introduced in advance of the referendum. Deputy Shatter's approach appears to be along those lines because he said those protections should exist. I accept that Deputy Shatter does not agree with our approach to this issue. We are proposing to give a wife that veto until the measures are introduced to provide the safeguards like those mentioned by Deputy Shatter. Is amendment No. 8 in order?
Acting Chairman (Mr. J. Doyle): It has been ruled out of order.
Dr. Woods: Deputy Shatter seems anxious to provide the type of protection that is needed for the family in these  circumstances. We are saying to the Government: “If you are to bring in these new protections why not leave the veto with the spouse who is here, whether the husband or the wife, until the safeguards are introduced?” The Minister has said that in most cases it will be the wife and everybody seems to agree that in practical terms that will be the case. The Minister said the wife will receive notice of proceedings but that person may not be in a position to pursue the matter and contest the divorce.
We are concerned that the Minister appears to be opening another door. She is saying the injustice applies to the wife at present and that we should not be worried if she wants to extend this injustice to the husband as well. I accept that it is a form of equality but it is not the type of equality one wants to have. If it is an injustice to the wife we should be providing the same cover and protection for both cases. We are bound to provide that protection under the Constitution. We are debating this issue while a wider debate in regard to the whole question of divorce is going on outside the House.
In any event, what will be the position vis-á-vis all of the types of arrangements to which Deputy Shatter referred? He mentioned that similar arrangements were made in the Matrimonial and Family Proceedings Act of 1984 in the United Kingdom. In this respect I presume subsection 9 (2) (h) would be relevant, in other words, the length of time which has elapsed since the date of the divorce. Then subparagraph (g) relates to the extent to which any order made under section 6 is likely to be enforceable. These kinds of safeguards bring one to the reality of what will happen in such circumstances. For instance, the phrase “the length of time which has elapsed since the date of the divorce” means, presumably, that the court in particular will have regard to the length of time which has elapsed since the divorce, that there may be a cut-off point at that stage, with no further support or protection afforded thereafter in relation to maintenance or whatever. We must take into account these cut-off points where the  family will be left without practical support, when they will then be thrown onto the State.
We would be anxious to have safeguards to protect the arrangements relating to the family home, dependent children, maintenance and the other matters which have been raised already, to ensure that such safeguards existed. Until such time as those safeguards can be clearly shown to be applicable perhaps the Minister would accept at least the spirit of our amendment.
Mrs. O'Rourke: I should like to take up two points the Minister made. One was that under the provisions of this Bill the woman — if it were known where she was living — would be informed of the court proceedings and could then move accordingly if she so wished. In practical terms that might not always be possible. For example, she may live in a remote country area, in a town in which there is no legal aid or, if there was, its application could be sparse. Out of sheer inability to cope with the problem she might give up, which happens in many cases. I sincerely mean what I say, that the Minister is doing women and injustice if she does not take on board the spirit of our amendment.
The Minister says that the position obtaining prior to the introduction of this Bill is that the woman is discriminated against. Surely one can fairly expect that the aim of any legislation would be to materially alter for the better the position of the person seen to be disadvantaged? Therefore any provision that would militate against such a person is regrettable.
While the Minister has referred to the proposals outlined by the Government which would come into force as well as the referendum proposals, such as the family courts and all the various supports for families mentioned, it should be remembered that they are very much in the future. We had hoped that they would come about prior to the debate. In the meantime this Bill, when enacted, will be the legislation of the land and of the day to be observed. In the Bill before us I  still maintain that a woman's property rights, those to the family home, that all of those rights will not be assured at all. Perhaps during the passage of the Bill through the Seanad the Minister would give this issue consideration. It is one which carries disadvantages in the main for women when surely the purpose of the legislation was quite the opposite.
Mrs. Fennell: I would reiterate that this is a minimal measure, to get rid of the very offensive concept of dependent domicile. The Deputy will accept that that could not be done alone because it would leave a lacuna in the law. As it is at present, with dependent domicile, at least it is clear cut. When we change that it will not be so clear cut. Therefore it would be irresponsible of us not to introduce the new rules we have under the provisions of this Bill.
I am very conscious of the points being made with regard to the need for the protection of spouses with a close connection with Ireland in this context. There is no provision in the Bill that would empower a court here to make an ancillary order to protect a spouse with a close connection with Ireland in relation to such matters as maintenance, the family home or barring orders.
On Second Stage some Deputies pointed out that the recognition of a foreign divorce obtained by a spouse can have the effect of depriving her, or indeed him — because let us remember we will have a number of women establishing domicile in other jurisdictions and succeeding in divorce petitions — of protection under the Family Home Protection Act, 1976 and the Family Law (Maintenance of Spouses and Children) Act, 1976. It is not clear if this is a correct interpretation of the law in all cases. For example, in certain circumstances our courts have implemented maintenance orders relating to foreign divorce decrees. The reason there is no provision in this Bill is that it is a minimal measure only. The inclusion of the kind of provision for ancillary orders which has been highlighted would represent a substantial extension of the measure which would be  outside the scope of the Bill, as determinned by the Long Title.
The Law Reform Commission, in their working paper on the recognition of foreign divorces and legal separations, acknowledged that the issues raised by the question of orders ancillary to the foreign divorce decree, go well beyond the limit context of recognition of foreign divorces. These issues, which are referred to in the last paragraph of the appended extract from the working paper, have not been analysed and were not considered in the proposals submitted to Government in connection with the proposals for reform of the law of domicile of married women.
As the purpose of giving the courts discretionary power to make ancillary orders would be to make provision for a divorce dependent on the spouse having a close connection with Ireland, the question of the nature of such provisions can hardly be isolated from similar questions of policy that arise in connection with the question of introducing our own divorce jurisdiction. Accordingly, there are good reasons for awaiting the outcome of the debate on the domestic divorce issue before making provision for ancillary matters in relation to foreign divorces. On Second Stage it was not so apparent; it is now more apparent. In any event, any proposal to empower the Irish courts to make provision for maintenance and for occupation of what was the family home in the case of a man and woman who are considered by Irish law to be no longer married would raise difficult questions, including questions as to what should be the scope of the provision and as to enforcement which could not be satisfactorily decided in the course of the passage of a Bill with the limited purpose of abolishing the domicile of dependency of married women and making the necessary consequential changes for recognition of foreign divorces. However, any problem there may be will not be a new one; it exists already — where, for example, husbands have gone to England,  become domiciled there, fulfilled all the requirements and had that divorce recognised here. We have that situation at present.
Dr. Woods: We are aware that that exists and can operate as an injustice particularly to the wife. We are all agreed on that. However, we feel there is an onus on us to give a veto to the wife until adequate safeguards are introduced here to protect the spouse who is left at home here, the family home and the dependent children. The essence of our concern is that the spouse is remaining here and maintaining the home and the children — normally it is the wife — until adequate provision is made in law to protect them and to ensure their interests will be properly looked after in any decisions made in foreign courts, and we are reluctant to go along with this provision.
Does the Minister think it is constitutionally correct today and that it will be correct under the Constitution we may have in two months, though it may turn out that the Constitution then will be the same as now to put through an Act under whose provisions one spouse can go abroad and take this step, and that such a divorce would be recognised in our jurisdiction? Let us not forget the husband can do it now because of the dependent domicile of the wife. The Minister is saying we are creating a position in which the family can be broken up by Act of the Oireachtas, because if one party goes abroad the State will recognise such a foreign divorce.
Has the Minister taken advice on this and does she think it would be constitutionally acceptable at present? It is effectively tantamount to both spouses going abroad, but because of independent domicile it will be only the husband going abroad, in law. When the Minister makes a declaration in this regard it will be recognised as declaring that if either spouse domiciled abroad gets a divorce abroad that would be recognised here in law. Would that come into conflict with the Constitution, having regard to the  inalienable rights of the family? Will the Minister let us know what her view is in that respect?
Mr. Shatter: I wish to make brief reference to the comments made by the Minister in regard to the consequences of recognising a foreign decree of divorce. The Minister was right when she said that currently if a foreign decree of divorce is recognised the consequences for a wife in Ireland would be that her right to maintenance in the Irish courts would collapse, her right to protection under the Family Home Protection Act would collapse? Would her rights to a barring order go? Would her rights to take an injunction in the courts remain?
That is not as fundamental a problem as the other two aspects. Though I favour the Bill because it provides a more rational rule of recognition, I am afraid its effects will be to accept the consequences of loss of maintenance rights, family home protection rights, equally to both husband and wife — both would be put in an equally difficult position. I do not accept the Minister's statement that this is an issue to be left over to a later stage until the divorce issue has been dealt with by way of referendum, or until other issues will be dealt with in future legislation. The Minister seemed to indicate that she is prepared to consider the amendments I tabled but which are not now up for discussion. They would provide maintenance and protection in the family home. Would she consider them when this Bill is going through the Seanad?
Whether we have constitutional changes or not, we still have a problem in regard to recognition of foreign divorces. That problem will not be solved by people getting divorces in England where the courts can make orders of ancillary protection. There are wives in Ireland now whose husbands have been divorced in the US, in Canada, in Germany and in various other countries, all of which divorces may be recognised in current law. All of these wives find their rights cut out and not all of them can afford to be represented in those foreign countries  in order to secure ancillary orders in regard to divorces brought in those countries.
Deputy O'Rourke touched briefly on this. There is a gross deficiency in our legal aid system. We do not provide legal aid to assist wives to obtain legal advice and legal representation in foreign countries where husbands are seeking divorces. Some Irish wives obtain foreign legal aid from those countries, but in some countries that is not available and as a result the wives are left in considerable difficulty.
As somebody who sees these problems daily I would not accept that the consequences of recognition, because we have had a problem of this kind for many years, can be lived with even if it gets worse. The problem is that this is the first Bill since the foundation of the State even touching on this matter. My experience in the House has led me to be supremely cynical as to the speed at which likely additional reforms will be introduced following the enactment of an original Bill, particularly because of the time it has taken to get this Bill to appear. All parties in the House are at fault for that.
I hope the type of proposals contained in the amendments I tabled can be provided and implemented in the context of this Bill, which is separate and apart from having a domestic divorce jurisdiction. This Bill is the only means of providing real financial and property protection and assistance for dependent spouses. Under current law such spouses do not have the facility to obtain orders relating to property or support in foreign jurisdictions where decrees of divorce have been granted.
The Ceann Comhairle adopted the attitude that this is not within the scope of the Bill, but the effect of this is that it has certain consequences because current law eliminates maintenance and Family Home Protection Act rights, and the reform in this Bill will retain that situation and make it even a little worse. It is not the Minister's fault that current law does it, but why can we not deal with this in a comprehensive, sensitive way? Why  must we have only piecemeal bits of legislation that fail to take a broad view of what is necessary to make legislation workable? Why can we not have a Bill that will deal with the overall problems people outside face whose marriages are dissolved by foreign courts?
I have long since held views on dependent domicile and I welcome its going but, in all fairness, for the majority of wives whether they have dependent or independent domicile is a fine debating point at tea parties of well-heeled ladies discussing social problems academically.
The wife who has obtained a divorce does not care if her divorce is recognised because she has an independent domicile. However, the dependent wife who is divorced and has children is interested in her future financial security and her security in the family home. The real substance of the problem relates to an issue on which this Bill does not touch. We are dealing with a wonderfully refined issue for ladies' clubs to debate. I am not diminishing its importance, but it is a good deal less important than the impact recognition has currently under the law on the lives of many people. This Bill does not make it unique in that regard. It is a shame that we cannot deal with that issue in this context today. If not, I suggest, with all due respect to the Minister, that it is something which could be dealt with in the Seanad when the Minister's Department have had time to consider the amendments in this area which have been tabled.
Mrs. O'Rourke: Until the consequential legislation mentioned by the Minister has been brought about — and that will take some time — the Bill cannot stand on its own. It has very far reaching consequential effects. These should have been considered and discussed at length when the Bill was being formulated, but that has not happened. Until the improvements in family law mentioned by the Minister come about, would it not be better to take the very short term view and allow the retention to the spouse who has been left of the right of veto on  whether the divorce is to be recognised? That would seem to bring about the least damage now. I should like to hear the Minister's views on that.
Mrs. Fennell: Deputy Woods spoke about the husband going to England, becoming domiciled there and getting a divorce. I do not know if the Deputy realises that if the husband is in England and his wife is in Ireland she can sue from here for a divorce. That is possible under the existing situation of dependent domicile. Either the husband or the wife who is living here can obtain a divorce in England which will be recognised here if he fulfils the necessary requirements of the British jurisdiction. Only a court will then say if this is constitutional but we can see no reason to doubt that it would be.
On the further issues, I suggest to Deputy O'Rourke that we would not have the powers to dictate to a foreign court on whether they should veto the divorce if the wife does not consent.
Mrs. O'Rourke: Is it not proposed that the divorce can happen whether the wife wants it or not?
Mrs. Fennell: Yes.
Mrs. O'Rourke: That is what I say should not happen.
Mrs. Fennell: That would be impossible to enforce even if we felt it to be desirable. May I remind Deputies that we are talking about limited legislation brought in for reasons which have not to do with ladies' tea parties, I suggest, but to do with a UN Convention and a longstanding grievance which women and very many fair-minded men have had about this offensive concept of dependent domicile which all married women shared. It is not just a fanciful issue; it is a very serious one for many women. Consequent on changing that concept we are obliged to bring in new rules for recognising foreign divorces.
In the context of the entire Bill, it would be ludicrous to buy a greyhound and then regret that it is not an elephant. This is effectively a limited Bill. It could  not and does not deal with the issues about which I and the Government care and which will not be abandoned. I take Deputy Shatter's proposals and welcome having a chance to examine them. I know they have been ruled out, but they came in very late last evening and I have been in the House all today and have not had a chance to examine them. I am very happy to have them and certainly they will be examined because this is an issue to which we shall have to address ourselves. However, we will not be doing so in this legislation.
Dr. Woods: The question raised concerns the fact that once a foreign divorce is recognised the various rights collapse in relation to the family home, maintenance and so forth. I am surprised Deputy Shatter's amendment has been ruled out of order but I had better not get into disagreement with the Chair on that subject. I saw this amendment as a mirror image of what is contained in our amendment and, until such time as adequate provision is made, the Minister might accept our amendment. We believe that the Irish family and spouse should have a veto, to some extent at least, on the degree to which they will have to submit to the foreign jurisdiction until adequate safeguards are introduced for maintenance, dependent children and the family home, for instance.
This is not always something which happens across the water, or far away. Questions can arise such as the family home and the right to continue to reside in it. That is one of the aspects covered in the Family Home Protection Act of 1976. Under that Act the wife — as the case will usually be — enjoys the protection of the home. She cannot be put out of the home under section 5 of that Act which states:
Where it appears to the court, on the application of a spouse, that the other spouse is engaging in such conduct as may lead to the loss of any interest in the family home or may render it unsuitable for habitation as a family home with the intention of  depriving the applicant spouse or a dependent child of the family of his residence in the family home, the court may make such order as it considers proper, directed to the other spouse or to any other person, for the protection of the family home in the interest of the applicant spouse or such child.
Will that protection still apply once the foreign divorce has been recognised?
Mrs. Fennell: No.
Dr. Woods: There will clearly then be a loss of that protection and, as Deputy Shatter said, these rights will collapse. Have we, as the Oireachtas, the right to interfere in this way with the spouse here in Ireland in the family home who is trying to bring up the dependent children? Have we a right to make arrangements which will result in the collapse of the protection provided under that Act? On a wider basis, from the constitutional point of view the Minister has said that, as far as she understands, it would be consistent with the Constitution to make these arrangements — arrangements which could be quite damaging to families here. As far as the Minister's advice goes, that would be consistent with the Constitution and if not, test cases could be brought to the courts and sorted out there. I had hoped that the Minister would have made a more comprehensive statement about the constitutionality of the change proposed in this Bill and her conviction that it is consistent with the Constitution, because this is a question that one must contemplate. Instead, in a kind of offhand way she told us that so far as advice goes it appears that the change would be constitutional. There is not much more we can say about this section. I do not know how the Seanad can consider Deputy Shatter's amendment if we are not to be allowed consider it here formally. Nevertheless, it puts the question fairly comprehensively in relation to this whole area. Deputy Shatter has mentioned particularly Nos. 8, 9, 10 and 11 as areas that need to be covered. Perhaps we have elucidated  those so far as possible in the circumstances in which we find ourselves at this point but I assure the Minister that these are the kinds of matters that concern us now and that we consider that the Government's decision as proposed in section 5 is in effect condoning the injustice that applies now and extending it to both spouses. This is not desirable. It is particularly undesirable if the Minister does not intend bringing in in parallel the safeguards which should be applied to these cases of foreign divorces, even to the extent to which notification and consent are required.
Deputy Shatter raised the question of legal aid. We know that there is a shortage in this area even for civil cases here, but we are talking in this instance of cases that are in conflict with the family here and which are being taken outside the jurisdiction. The Minister is adopting a very open approach by way of recognising that either spouse can establish a domicile elsewhere. That approach could be very damaging to Irish families and, in particular, as we know from practice, to many Irishwomen. The section is not in any way adequate to deal with that and the Minister if not disposed to accept our amendment in the short term and if she is not prepared to bring in more comprehensive controls and safeguards relating to this area, the proposal is too limited to deal with the very practical and real situation.
I recognise the point made by Deputy Shatter that while we can say it is nice theoretically to establish independent domicile — we are all agreed on that — we are talking of an area of very complex and difficult problems. The Deputy is familiar with the area of marital breakdown and foreign divorces. He deals with  such cases on a day-to-day basis so he can appreciate the need for safeguards and controls. We can only ask the Minister now to consider the various points made this afternoon. Because she will not be coming back to the House with the Report Stage, the only other context in which she can consider the various points is during the deliberations in the Seanad so we must trust her to consider the questions that have been raised.
So far as we are concerned now we must adhere to our basic position, that is, that until these protections are introduced, the Minister should maintain some degree of control on the part of the spouse in Ireland. We are open to listening to what kinds of controls might be operated. I appreciate that the control we are suggesting represents, as the Minister says, a veto on the part of the wife, particularly in the matter of the protection of her family and family rights when a foreign divorce is being considered. This amounts to a kind of veto in at least that the spouse here must submit to the foreign jurisdiction but if the Minister wishes to put forward something which provides another kind of control, we will be happy to listen to her.
This takes us to the question of providing the safeguards that are necessary irrespective of whether any change is made as a result of the forthcoming referendum but perhaps even more so if the referendum is passed. Therefore, there is a great urgency about providing the safeguards. In that context one can appreciate the certain sense of frustration expressed by Deputy Shatter. I am happy to participate in any measure that will lead to the protection of the family in that way.
The Committee divided: Tá, 62; Níl, 71.
Aylward, Liam. Brennan, Paudge.
Burke, Raphael P.
Coughlan, Cathal Seán.
Fitzgerald, Liam Joseph.
Gallagher, Pat Cope.
Haughey, Charles J.
Brennan, Mattie. Lenihan, Brian.
Noonan, Michael J. (Limerick West)
Wilson, John P.
Bermingham, George Martin.
Conlon, John F.
Cooney, Patrick Mark.
Cosgrave, Michael Joe.
Deasy, Martin Austin.
Durkan, Bernard J.
Enright, Thomas W.
Farrelly, John V.
Fennell, Nuala. Taylor, Mervyn.
Noonan, Michael. (Limerick East)
Sheehan, Patrick Joseph.
Spring, Dick. Timmins, Godfrey.
Tellers: Tá, Deputies V. Brady and Barrett (Dublin North-West); Níl, Deputies F. O'Brien and Taylor.
Amendment declared lost.
Mr. Shatter: I move amendment No. 6:
In page 3, subsection (4), lines 26 and 27, to delete “it is recognised in the country or countries where the spouses are domiciled” and substitute the following: “it is recognised in a country in which either spouse is domiciled.”.
The provision in subsection (4) seems to give legislative force to what is believed to be currently the law as a result of a very old court case called Armitage versus the Attorney General at the beginning of this century at which it was decided by an English court that, if a decree of divorce was granted in a foreign country and if that divorce was recognised by the country of the domicile of the couple who obtained it, then it would also be recognised by English law. That is believed to be the case in Ireland also. The provision in the Bill seeks to make that part of our law formally and statutorily. It is welcome to the degree that it makes the law certain. The provision contained in the Bill does not seem to have modernised it or brought it into keeping with the actual reform introduced by the Bill. The decision in that case was made on the basis of reciprocity, on the basis that the English courts would normally recognise a decree of divorce granted in the place where the couple were domiciled. It made sense if the couple obtained a divorce in a foreign country in which they were not domiciled but it was recognised by the law of the domicile in which they resided.
This amendment is designed to provide the same degree of reciprocity in the context of the new situation that would come about on the enactment of this Bill. It seems that the provision as phrased would require that the foreign decree of divorce would be recognised in the country of the parties common domicile. My proposal is that if a foreign decree of divorce is granted to a couple and if it is recognised in the place of domicile of either spouse we should also recognise it. We are now making it law that we will recognise a decree of divorce if either spouse obtained it in a country in which they were domiciled. In that case we should also recognise a decree of divorce obtained elsewhere if it is recognised by the country in which either spouse is domiciled. It does not make sense to preserve the common domicile rule. I would be interested to hear the Minister's response to this so as to provide a uniform system of recognition of foreign divorces.
Mrs. Fennell: This amendment is opposed. The provision in subsection (4) deals with a situation where the divorce is not granted in a country where either spouse is domiciled. Nevertheless it provides that the divorce will be recognised if it is recognised under the laws of the domicile of both spouses. The amendment would allow recognition in Ireland if the divorce is recognised under the law of domicile of one spouse and not the other. This is a much wider rule. Since we are concerned with a case where neither spouse is domiciled in the country granting the divorce, it is right to take a more restrictive view as to when the divorce should be recognised in the State and to insist as a precondition that the divorce should be recognised by the laws of the domicile of both parties.
Amendment, by leave, withdrawn.
Mr. Shatter: I move amendment No. 7:
In page 3, lines 28 and 29, to delete subsection (5) and substitute the following:
 (5) This section shall apply to a divorce granted in divorce proceedings initiated after the commencement of this Act.
This amendment is of some importance. The Minister might clarify the position in regard to section 5 (5) of the Bill. The Bill provides that we will recognise a foreign decree of divorce if granted in the place where either spouse is domiciled. Domiciled is said to mean domiciled on the date of the institution of divorce proceedings. The normal position will be that in a year's time after the enactment of the Bill in most instances divorce proceedings will be initiated in a country in which the couple are domiciled or in which one or other party is domiciled. Divorce would subsequently be recognised. Subsection (5) gives rise to a difficulty that will affect people in respect of whom divorce proceedings have already been initiated at the time this Bill commences. Subsection (5) provides that this section shall apply to a divorce granted after the commencement of this Act. Taking into account the effect of subsection (3) it could give rise to certain divorces being recognised as valid without people realising that was the case. Let us take the position of a husband in Ireland who has been deserted by his wife who is now living permanently in England and who has instituted divorce proceedings in England. At the moment if the husband seeks advice as to the legal position in Ireland with regard to the proceedings he will be told that as he is domiciled in Ireland and his wife also has such domicile because of the concept of dependent domicile the divorce will not be recognised in Ireland. If that divorce decree is granted one day before this Bill becomes law the divorce will not be recognised but if the decree is granted the day after the Bill becomes law the divorce will be recognised because of the interaction between section 5 (5) and section 3. That gives rise to a real problem that could affect a number of people. It is usual that a measure of this nature should apply in respect of proceedings initiated after the legislation has come into force, not  simply in respect of a decree granted after it has come into force. This can change the consequences of the granting of that divorce decree in mid-term. There is a drafting problem in this connection.
I appreciate that the Minister and her officials may not have had time to deal fully with this point. It is a technical matter but it is one that could have a real effect on the future lives of a number of people in respect of whom divorce proceedings will have been initiated when this measure comes into force. From the point of view of drafting it is a better provision to say that the section shall apply only to a divorce granted or divorce proceedings initiated after the commencement of this measure rather than that it should apply in the manner provided in the Bill.
I understand that the concept of domicile as it is defined seeks to ensure that what is meant is domicile at the date of institution of the proceedings but if one marries that definition with section 3 and the effect of section 5 it could result in considerable injustice to a number of people. Some people could find that foreign decrees of divorce are recognised when, after the initiation of the proceedings and even prior to the commencement of the debate in this House, they might have received legal advice to the effect that such a divorce would not be recognised.
Mrs. Fennell: On the face of it, the amendment appears more restrictive than what is contained in the Bill. The Government are satisfied that it is correct to abide by the provisions in the Bill. However, the point raised by Deputy Shatter is worth considering. The amendment would have the effect that recognition would be refused for a divorce granted after the commencement in force of this measure merely because proceedings had begun before that. We suggest that seems an unnecessary restriction and could create an anomalous situation. We will maintain the position as set out in section 5 but we will bear in mind the point made by Deputy Shatter.
Mr. Shatter: In normal circumstances legislation enacted in this House does not affect legal proceedings already in being. Many years ago, a famous constitutional case, namely, the Sinn Féin funds case, established that precedent. This House cannot interfere with the rights of individuals in respect of existing and subsisting legislation. That principle has never been applied by the courts because they have only to determine it in the context of this House changing by legislation the rights of individuals living in Ireland in the light of existing litigation involving them in a foreign country. This is a technical difficulty that could have real consequences and that could have a constitutional infirmity.
I am not in favour or against things because they are either restrictive or liberal. I am in favour or against things because of their effect on people in the real world. In this connection, people may have planned how they will cope with foreign divorce proceedings on the basis of advice received by them based on the current law here. This Bill speaks about a person having a domicile in the country in which divorce proceedings take place at the date of the initiation of the proceedings. Normally the two things will coincide: the domicile will exist at the date of initiation of proceedings. According to current Irish law the view here may be that both parties have an Irish domicile. When this Bill comes into force section 3 produces the retrospective application of the concept of independent domicile and then suddenly in the middle of the proceedings one party could be regarded retrospectively as having independent domicile within the foreign jurisdiction. If the decree is granted two days after this Bill comes into force it is recognised but if it is granted two days earlier it is not recoginsed.
I appreciate the indication given by the Minister that she will consider this matter before the debate in the Seanad. It is an important point that will affect some people and we should iron out the difficulty. On the basis of the Minister's assurance that the matter will be looked at, I shall not press the amendment.
Mrs. Glenn: I wish to express my concern that the amendments submitted by Deputy Shatter were ruled out of order——
An Ceann Comhairle: The House is dealing with amendment No. 7. Is it withdrawn?
Mr. Shatter: I am not pressing the amendment.
Amendment, by leave, withdrawn.
Question proposed: “That section 5 stand part of the Bill.”
Mrs. Glenn: The provisions of section 5 will be extremely damaging to the women of the country whose husbands seek a foreign divorce. We are not providing the protection to which they are entitled. The Minister has given an assurance about her intention to consider the comments made here. I have great difficulty in supporting this section. We will do a grave disservice to the women of the country if we pass this section.
An Ceann Comhairle: As it is now 7 p.m. I must put the following question: “That Committee Stage is hereby agreed to, that the Bill is reported to the House without amendment, that Report Stage is hereby completed and the Bill is hereby passed.”
Question put and agreed to.
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