Wednesday, 23 March 1994
Dáil Éireann Debate
Mr. Dukes: I am delighted to have the opportunity to participate in the debate on this Bill which, apart from any considerations of an impending divorce referendum, is necessary and desirable. While it contains a number of important and welcome provisions, I am deeply concerned that a number of statements made by a member of the High Court over a period of a year or more seem to indicate a frame of mind, in that person at least, which is utterly antagonistic to what I regard as the compassionate philosophy that underlines this Bill.
The Bill gives the courts a number of powers in dealing with pension schemes, the objectives of which I support but which can require trustees of pension schemes to do things which are not consistent with the rules of their schemes. I find no evidence that the Government has given serious consideration to the implications of those proposals or to their feasibility — I will come back to that matter later.
Some sections of the Bill require the courts to make judgments based on an assessment of matters such as likely future obligations on parties in family law cases, without giving directions as to how the court is to assess these obligations. These are referred to in section 16. The courts will find it very difficult to interpret  these powers and may choose not to use them at all or perhaps to use them very conservatively. That is not the intention of the Bill.
The proposed provision for notification of intention to marry three months prior to the date of marriage is absolutely absurd although I know I am out of step with a great many of my colleagues on all sides of the House in saying so. I could not find anything in the Minister's speech to explain why the Government believes that a change in the current law and practice is required. This is very bad because unless the Government can produce a valid and sensible reason for making a provision of this kind — it is highly unlikely that any such reason can be produced — then the provision should be dropped from the Bill. I will come back to that point later.
The general thrust of the Bill and many of its detailed provisions underline once again the central importance of the Bill published in 1988 by my colleague, Deputy Alan Shatter, which eventually became the Judicial Separation and Family Law Reform Act, 1989. I am happy that Deputy Shatter, with my full backing and the full support of the Fine Gael Parliamentary Party, persisted with that Bill and overcame what was sometimes a very cynical rearguard action by deeply conservative elements in Fianna Fáil to have that Act finally placed on the Statute Book. That Act has been a major bench mark in the development of family law and the compassionate philosophy which underlines this Bill, and should be valued as such.
I welcome the increasing attention given to family law matters in recent years and the increasing public sensitivity to the many problems which still have to be resolved. However, there are still many causes for concern, one of which must be the recent Supreme Court decision on the Matrimonial Home Bill. I do not for a moment question the President's decision to refer that Bill to the Supreme Court for an adjudication on its constitutionality — that was the perfectly proper thing to do — but I am worried that in its judgment the court seemed to  indicate it sets rights to property above concerns with equality. With a different frame of mind, the court could just as easily have come to another conclusion, setting concerns with equity above rights to property.
I have no patience with the various disingenuous criticisms of the drafting of that Bill since the Supreme Court found it unconstitutional. The number of Bills referred to the Supreme Court and adjudged to be unconstitutional or successfully challenged by individuals is not very high in terms of the total volume of legislation we pass in this House. The provisions in our Constitution for the referral of Bills, for the right to challenge legislation and for the Supreme Court to tell us what the Constitution means were all put there with a very specific purpose in mind and it is nonsense to complain when those provisions are invoked from time to time.
Having said that and taking the view that the court could just as easily have made a different decision on that Bill, I hope the Government will come back to the issue in the light of the specific judgment made by the court. I hope the Minister agrees that, taking account of what the Supreme Court said and the reasons it has given for its adjudication, it may be possible to secure the objective this House set out when it began to debate the Matrimonial Home Bill. Regardless of what the court said, our Constitution clearly must allow us to make progress in the direction of equity and justice for the people involved.
I am worried about a series of comments made by a member of the High Court, Mr. Justice Rory O'Hanlon, which seem to indicate a rejection of much of what has been done in recent years in family law and related areas. They indicate a frame of mind which is antipathetic to the direction family law has taken in recent years, a direction which in my view — and I think in the view of many other Members of this House — represents a belated but nevertheless welcome appreciation of the nature of many of the problems affecting families today. It is a matter of deep  concern to me to find on one of the Benches principally concerned with this area of family law an attitude which seems to be deeply hostile to the direction the law is taking. I shudder to think what this might mean for the administration of the law.
This matter goes further. Mr. Justice O'Hanlon recently characterised the contents of condom vending machines as “repulsive”. I cannot imagine that he intended us to take that remark at face value as an aesthetic judgment informed only by personal observation or experience. I think what he finds repulsive is the fact that a woman and a man can decide and have the means to control the fertility of their union. Mr. Justice O'Hanlon has expressed other views which go far beyond the simple question of contraception; they go to the heart of many of the difficulties which cause people to resort to the courts to resolve family law matters. I find it deeply disturbing that these views are held and expressed with such force and so publicly by a member of the Judiciary who may be called upon to preside over hearings of family law matters in our courts.
Mr. Justice O'Hanlon is perfectly entitled to hold whatever views he thinks proper, but I am worried that a member of the Bench would resort to the kind of nonsensical claim, which we will hear more and more in the coming months, that in some way Members of this House are involved in a conspiracy to sap the moral fibre of our nation. That is the last thing we want to do. We are trying to find a way through the difficulties which beset people in our society and to find compassionate and just means of resolving their difficulties. I would have expected a far higher degree of analytical competence to be shown by a member of the Bench of the High Court.
Some provisions of the Bill call for particular comment or question. The provisions on pensions and succession rights in cases of nullity show just how precarious the concept of nullity is. Section 2 (3) deals with the issues of nullity and voidability from a definitional point of  view. I do not for a moment question the necessity for those references in the Bill but the very fact that those contortions have to be included in the definition section shows very clearly that it would be much more logical to provide for divorce than to have to go through the kind of legal and mental gymnastics involved in making those types of provisions in a Bill of this kind.
The matter becomes even clearer when we conside the concept of nullity of marriage in the precepts of our principal Church. It is incomprehensible for anyone to pretend to determine the state of mind of a couple on the day they married when looking at their situation after perhaps 20 years of family life. The entire concept goes far beyond the limits of credibility. I have enormous sympathy for the people on tribunals dealing with these cases — I know some of them — who find their work intellectually, emotinally and spiritually draining. The work they do rests on what I would regard as a conceptual fallacy and it puts them and, more tragically, the people who come before them in an appalling emotional wringer, all for the sake of avoiding the concept of divorce. It makes provision for the very same thing at the end of the day.
The difficulty in this area was well illustrated, perhaps inadvertently, when the Minister introduced the Bill. At Volume 439, column 618 of the Official Report, when speaking of succession rights in section 13 of the Bill, the Minister said: “The position is different in the context of nullity. As pointed out in the White Paper on Marital Breakdown, following nullity, succession rights must end because the parties are no longer spouses”. The Minister should have said that no succession rights ever existed in such a case because legally the marriage never existed. The fact, however, is that the Minister, the Government and the Committee on Marital Breakdown recognised what the Minister described as “possible hardship involved in loss of succession rights”. The fact that the Minister recognised that in such cases must surely indicate that for some time  at least couples involved in such situations believed they were married and believed that the marriage gave rise to the duties, obligations, rights and expectations that are normally associated with marriage. Any hardships arising — and hardships undoubtedly arise in situations of that kind — should be dealt with on the basis that is appropriate to divorce. We should not put people through mental contortions by saying that something is a nullity when in fact it clearly existed in their minds, in their behaviour and even in their hearts for a period of years.
Section 11 proposes to empower the courts to give directions to the trustees of pension schemes and in subsection (3) such directions may even go to the point of requiring trustees to act in a way which does not comply with the rules of the pension scheme in question. Has the Government reflected on the possible implications of empowering the courts to give such directions? What will be the legal situation of the trustees of a pension scheme who, after representation, are ordered by the court to do things which are clearly outside the rules of the scheme of which they are trustees? Has the Minister given any attention to that matter? If not, we should not make such a provision in this Bill even though the aim of the Bill in so doing is laudable and motivated by a concern for justice.
In making provisions under section 16 relating to periodical payments, lump sum orders, property adjustment orders, miscellaneous ancillary orders, financial compensation orders, pension adjustment orders, the preservation of pension rights after judicial separation and orders for the provision of a spouse out of the estate of the other spouse, the courts would be required by this Bill to make a number of judgments, including judgments as to the likely future obligations and capacities of spouses. Section 16 contains a whole series of the kinds of judgments that the courts have to make. In section 16 (2) (a) there is reference to “resources which each of the spouses concerned has or is likely to have in the foreseeable future”. That reference occurs twice. The effects on the earning  capacity of each spouse is also mentioned. It states also that the court must have regard to “the conduct of each of the spouses, if that conduct is such that in the opinion of the court it would in all the circumstances of the case be unjust to disregard it”. We can all argue whether the court should have regard to those matters but they are areas that are likely to be very difficult indeed for the courts. Has the Government teased out all of the possible implications in connection with these kinds of judgments?
The Bill proposes to raise the minimum age of marriage, currently 16, to 18. Although I dislike regulations of this kind and believe the legislation should not enter further than is necessary into people's personal lives, I recognise that this question is largely a matter of judgment and I would have to go along with the proposal. It is likely, however, to give rise to some difficulties among the travelling community and since the Minister for Equality and Law Reform has the primary responsibility also for policy in relation to the travelling community, on which he has my full support, I would be interested to hear his views on this matter. I hope he will not tell me that the provisions of section 33 of this Bill solve that problem. I will deal with those in a moment.
The provision in section 32 requiring three months notice of intention to marry — and I say this with all the emotion of which one is capable on a Bill such as this — is an outrageously bureaucratic and intrusive provision. That provision is “big brother” gone mad. When introducing the Bill the Minister gave no justification for that proposal and I would like to know why it was thought necessary or desirable to depart from current law or practice in this area and write it into legislation. What useful purpose, if any, could possibly be served by this provision? What defect in the present law, if any, is it proposed to address by means of this measure? I see no reason whatever for making this provision. It is nothing more than a piece of nonsence perpetrated by interfering, busy body socialists and it has no place in this Bill.
 The nonsense is compounded, of course, when one examines section 33 of the Bill which provides for exemption from this provision and from the provision providing for a new age of marriage. If an application is made under section 33, the unfortunate Solomon on the bench must decide whether the applicants can show that they have serious reasons for the application or that the application is, and I quote from the Bill “in the interests of the parties to the intended marriage”. What serious reasons can people bring before the courts to dispense with the three months requirement from the notice of marriage or to allow one or other or both of them to marry under the age of 18? What would be required to convince the court that it would be in the interests of the parties to the intended marriage to allow them depart from these procedures? Are the courts now to be given the job of ruling on the depth of emotion and commitment between a man and a woman? It is impossible and nonsensical to ask the courts to do that. This Bill deals with very serious issues and this bit of comedy should be taken out of it because it has no place in this legislation.
Mr. M. McDowell: If I may start where Deputy Dukes left off, I have drawn attention in public to the inadequacies of section 32 and section 33. This provision did not come from the meanderings of a socialist busy body. It came, unfortunately, from people who should know better; a representative committee of this House and I think the Law Reform Commission were involved at one stage also. Nonetheless, the idea of people playing God with other people's lives is very dangerous.
The notion that a group of people in this House can lay down in the law a stupid stipulation that people must notify in advance the register of births, marriages and deaths of their intention to marry, and that if they fail to do so their marriage is void, is unnecessary bureaucracy and it will cause chaos. What is more unfortunate is the provision that  the notice must be published. In some office in Dublin notice of every impending marriage will have to be displayed and the parties will have the consequent intrusion on their privacy and their liberty. There are people for whom the fact that they intend to get married is something that they have good reason to want to keep quiet. It might not be the serious kind of reason a judge might think applies but it might be a good reason. For example, a person in public life may want to keep secret the fact that he or she is getting married. Perhaps somebody in the public eye, or who has been convicted of a criminal offence in the past, wants to keep their affairs secret from the prying attentions of the media. There is no reason for the Minister for Equality and Law Reform bringing before this House a measure which will cause misery for many and happiness for none.
Marriages will not improve because people send in a form three months in advance to some shabby little office somewhere, and have their names displayed on a board. The idea that impetuous marriages will be avoided by that, or that unhappy marriages will be swept aside is so daft as to call into question the Minister's judgment.
It is all very well for the Minister to come into this House and say that he proposes a measure of this kind. As Deputy Dukes said, he did not give a good reason. A stupid Bill is being foisted on us without justification. I do not claim to know better than anybody else in this country whether people should marry with one, two or three months notice. As a married person, I do not claim I have any superior knowledge of the ways of the world which would entitle me to say that a couple who have been going out with each other for ten years should not decide to get married next week. If I cannot claim that, then the Minister cannot either. Neither do I think that any Members on the Government benches have any superior knowledge, wisdom or insight into marriage that would enable them to foist that judgment on people who intend to get married. Why should people be subjected to the humiliation of  having their intention of marriage displayed in a registrar's office? Why should they be besieged, as they certainly will be, by the enterprising people who will offer them bridal cars, wedding receptions, suites of furniture, mortgages, insurance policies and all the rest of it for months before they get married? Why should a prominent showbusiness or television personality, have their intention to get married gone pruriently into by the media just to satisfy some bureaucratic notion that their marriage somehow will be happier if they reflect on it for three months?
I challenge the Minister to give one good explanation for the necessity for the provisions of section 32. I agree with Deputy Dukes that our Judiciary have enough to do without engaging in the silly business of listening to applications as to what constitutes a serious reason for wanting to get married in less than three months. Why should a judge have to listen to people who have been going out with each other for ten years say that they want to get married in one month's time because, say, the mother-in-law will be back from Australia for the wedding? What kind of rubbish are we inserting into our laws? Why should anybody have to go to a court to say that is what they want to do? Equally why should those who do not go down that stupid path find themselves besieged by commercial enterprises rendering their period of statutory engagement, as this Bill sets out, a period of misery?
If somebody in the public eye wants to get married quietly and privately, does that constitute a serious reason for asking a judge to agree that the requirement to apply should be waived? There is absolutely no excuse for this measure. Nobody has asked for it.
I can tell the Minister another thing, when I raised the issue in public, the outcry against it was huge, most people despise this proposal. I do not believe the Minister received a single letter in favour of the measure.
Mr. M. McDowell: I guarantee that if the Minister persists with it this will be wrapped around his neck throughout the whole divorce campaign, with people alleging this was the man who insisted on a statutory three month's engagement, who made life miserable for most intending married couples, who caused other people to go to court to explain their domestic arrangements; that is what he believes about the power of Big Brother.
A second point raised by Deputy Dukes, which I consider to be of some significance, is the whole idea of the approach of the Judiciary to matters of this kind. The judge of whom he spoke is a person for whom I have an immense respect because he lectured me in University College, Dublin. His intellect, bravery and courage always impressed me, he is a person of tremendous calibre. However, I am disappointed that over the past few years he felt it appropriate to express in public fundamental moral and political messages which are not his business to express. It is not the business of the Judiciary to attempt to become leaders of the moral community; they were not appointed to be that; they were appointed to be independent arbiters between people who have disputes. They were not asked by society, in fact it is none of their vocation, as judges at any rate, to become moral leaders of society. By reason of holding judicial office, they do not obtain any new injection of moral authority. The fact that under the Constitution they are given particular functions to adjudicate in disputes of various kinds does not grant or confer on them some new moral authority to pronounce on social matters. Their views are no better than the day they were appointed to the Bench.
Their moral capacity to comment on social issues is not improved by donning a judicial wig or sitting on the Bench. The members of the Judiciary do not have any peculiar insight which allows them to comment on constitutional reform when it comes to basic matters of morality or policy. Their views on taxation, sexual morality and theology are  private and they were not put on the Bench to express them publicly.
I am afraid the sad fact is that it is not their fault alone because some institutions and organisations seek their public support for propositions on the mistaken notion that, because somebody was appointed a judge five, ten or 15 years ago, people will have more respect for their views when they speak, to use the phrase used about NATO, “out of theatre”. They do not have any peculiar beneficial insights into moral matters. It is unfortunate that some members of the Judiciary, however bona fide their belief, feel they should use their office to propagate views when their office is designed, by definition under the Constitution, not to be used for the propagation of personal views of that kind. I will not comment any further on that except to say that my fondness for the man in question does not outweigh my strong feeling that, if his behaviour in support of his propositions is acceptable to this State, if other people of equal and opposite views on the same kinds of issues began weighing in, we would have chaos. Therefore, on basic moral principles, a judge who feels called upon, by some inner voice, to express moral sentiments in public, and organisations which give the Judiciary moral pulpits from which to speak, should hesitate because what they choose for themselves, they choose for others. Indeed they cannot complain if all the Judiciary joined in every moral bun-fight of every kind expressing views.
It is important for the Judiciary to remember that in suggesting, as was done, that people who engaged in sodomy were of such a personality that their immorality must infuse all other aspects of their life — that was the message contained in the last judicial encyclical — it suggests prejudice. It suggests that if a well known homosexual came before a court he would be less credible and would probably be disbelieved more than somebody who did not exhibit those tendencies or was not known by the judge to have them. We need an independent  judiciary which keeps to the function which the Constitution gave it. Those who feel impelled by inner moral voices to trespass out into other territory, reserved for politicians and clergymen, should make the choice which is appropriate; they should choose either to lay aside their judicial office and throw themselves fully into a moral crusade or accept the necessary constraints of independence, impartiality and continence of the mouth and mind that follows being appointed to a judicial position.
A point I would like to raise in the context of this legislation is the fate of the Matrimonial Home Bill. I do not accept what Deputy Dukes said about it. I do not think it was a question of the Supreme Court deciding that property rights overrode equality rights. As I understand that decision, the Supreme Court said that it was people's moral autonomy to decide their own affairs in relation to property matters, but in relation generally to the nature of their marriage — in the Constitution we find that property rights arise by virtue of man's rational being. People's autonomy was not to be infringed. It was not a question of property being more important than equality but that autonomy is more important than external control. That is a reasonable viewpoint for the Supreme Court to have arrived at, but that should not be the end of the issue in relation to the family home.
The Supreme Court saying that mandatory formula infringes matrimonial autonomy does not mean nothing can be done for people in Irish society for whom the Legislature can intervene and provide equality. My colleague, Deputy O'Donnell, expressed the view that this is something which the Legislature should revisit. The Supreme Court decision in L. v. L. could be reversed without any of the constitutional infirmities found in the Minister's legislation. The Judiciary could be given a competence to determine that a woman who works within the home as a wife has implied rights of some form to share in the family home. That can be done on a judicial basis in a satisfactory way, even  though it cannot be done on a legislative mandatory basis in the way in which the Minister attempted.
I agree with the proposition which Deputy Dukes enunciated that it is ridiculous ex poste to attack the Minister for introducing the Bill because the Article 26 reference exists on the basis that this House will make decisions which conflict with the Supreme Court's view of the Constitution. None of the participants in the debate in this House, myself included, zeroed in on the point on which the Supreme Court decided the matter, that is, the issue of matrimonial autonomy. While some people thought in terms of a property rights and equality rights conflict that was not the basis on which the Supreme Court eventually turned it down. Since no Member thought of the point the Supreme Court made, it is not fair to attack either the Minister or the Attorney General for failing to see it. It is not correct to pretend there is something wrong with the legislative process or the people who initiated the legislation just because the Supreme Court rejected it on grounds nobody in this House foresaw.
Mr. M. McDowell: I do not remember it ever being raised as an issue. A considerable number of Deputies envisaged that there could be a constitutional conflict between property rights and the model of equality but nobody foresaw that there could be some infirmity with that legislative approach by virtue of the family provisions of the Constitution.
Deputy O'Donnell is right in saying there is room in this legislation to redress the evil sought to be dealt with by the Matrimonial Home Bill; that is that many people live an entire life as part of an economic community and, as a matter of law, have no right in the chief asset which is sustained by that economic community of marriage. There is plenty of room, without in any way infringing the view of the Supreme Court in the Matrimonial Home Bill case, to reverse the  effect of the Supreme Court decision in L.v. L. and to provide that a woman, but a spouse in general, can earn an equity in the family home simply by performing the role of partner within a marriage. I do not see any reason that should not be done. As long as it is done on a basis that enables the Judiciary on a case by case basis to evaluate the contribution I do not see any constitutional infirmity with such a proposition. I hope the Minister will see his way to accept amendments towards that end on Committee Stage.
The last point I would like to deal with is the issue of nullity. I have grave doubts where a relationship is determined never to have existed, about the idea of conferring succession or other rights on the non-parties to that non-relationship. That is confused thinking and philosophically there is something very wrong with it. I accept that in marriage law there is a difference between void and voidable marriages and that some relationships can endure for a while and be recognised by the law until such time as they are voided.
Mr. M. McDowell: I accept that proposition. In the case of a marriage that is, by definition, void ab initio— where there is absence of true consent — I cannot conceive of any philosophical reason somebody who is not a party to a marriage should be treated as though they were because at some stage one or other of the parties thought they were. What Deputy Dukes said about divorce being the answer to that problem is entirely correct.
Mr. Lenihan: This Bill should be read in conjunction with the Judicial Separation and Family Law Reform Act,  1989. They enable the courts to make the necessary financial, property, pension and maintenance arrangements required in cases of marital breakdown where separation, nullity and foreign divorce orders have been made. These measures rationalise the financial position of the dependent spouse and children in the event of marital breakdown. A sum of £750,000 was provided this year for voluntary marriage counselling organisations and funding for the family mediation service nationwide was doubled. However, the major problem highlighted in the Law Reform Commission report on family courts published recently is that the present court structure is inadequate and unable to cope with the growing pressure of family law litigation. New or improved family law remedies require a new court structure with essential support services.
I support the recommendation in the report to establish a system of regional family courts functioning as a division of the Circuit Court and located in eight or ten regional centres. These courts should be presided over by Circuit Court judges nominated for their special ability to deal with such matters. They should operate within the context of a range of support and family services. They should be persons who, by reason of training, experience and personality, are suitable to deal with matters of family law. The proceedings should be held in camera.
Where proceedings for a judicial separation have been instituted, a family court advice centre attached to the court should make information concerning the various support and mediation services available to the parties involved. In all family proceedings before a regional family court the judge should recommend that the parties attempt to resolve outstanding issues through negotiation or mediation. The courts should be given wide powers to review and, if necessary, vary, on the application of either party, the terms of agreements concerning maintenance and property.
In the White Paper on marital breakdown which will come under consideration  shortly due to the legislation required in connection with the constitutional amendment, five possible approaches to a constitutional amendment on divorce have been proposed. My strong preference is for the fourth option which provides that where a marriage is irretrievably broken down and the judicial separation or entitlement thereto has been in existence for over two years, the court may grant a dissolution of marriage provided it is satisfied with the provisions being made for the dependent spouse and children and there is no reasonable possibility of reconciliation between the spouses. The great merit of this option is that it would merely extend existing law on judicial separation which has been in operation for four years to permit dissolution and remarriage.
In most of these cases the financial, property and other details which caused such controversy in the last divorce referendum would have already been decided in the separation proceedings. Those involved would have been operating under current legislation and the separation Act for two years so the proceedings to provide for the dissolution of marriage would be at minimal cost. I recommend that option to the Minister.
I appeal for a constructive and mature debate on this issue and one designed to ensure that we will have a legislative environment which will strengthen society and human relations and enhance care for children and the family. It should be looked at in that constructive light rather than in terms of the negative debate which some elements in society seem anxious to stir up.
Mr. D. McDowell: I appreciate the Minister is facilitating my contribution. I am fascinated by the latest extension in Deputy Michael McDowell's liberal philosophy on the institution of marriage. He seems to be just one step short of endorsing the inherent right of cavemen to club their prospective partner over the head, pull them from the cave and do whatever is necessary.
Mr. D. McDowell: It will be between consenting adults I am sure. I support the Bill particularly in the context of the divorce referendum. My preference is for going ahead with the referendum this year. There was some media speculation, based on the comments of some Members, that we were not ready for it and perhaps it could fail, as in 1986. Underlining this is the suggestion that there is some magical legislative formula which, if in place, would make it easy. This is not the case. No matter what we do between now and October there are many people who do not believe in the right to remarry. The Roman Catholic Church takes a particular view of marriage with which I do not agree. They will not change between now and October irrespective of what legislative provisions we put in place. I do not believe we will persuade any of the groups who successfully defeated the 1986 referendum that they made a mistake, nor do I believe that the Members who opposed the referendum——
Mr. D. McDowell: Those of us who believe in the right to remarry and that divorce is a civil right must persuade others. We should not cod ourselves into thinking that those who defeated the referendum in 1986 have changed their minds. Unfortunately I do not have time to comment on the proposals regarding annulment, pension splitting, the age of marriage and so on.
Mr. S. Kenny: I support the Bill, which is an indication of the Government's approach to social law reform. It is done  in a caring and practical way. There is urgent need for legislative and administrative measures to deal with the problem of marital breakdown and the Bill addresses those problems.
I support raising the marriage age from 16 to 18 years and the introduction of a three month waiting period, despite Deputy Michael McDowell's arguments against it. There are valid reasons for doing so.
Mr. S. Kenny: One cannot book a holiday without giving a few months advance notice. The Bill provides for the making of social reports. These are necessary to safeguard the welfare of spouses and children. I welcome the provision of £750,000 for voluntary marriage counselling organisations particularly in this the international year of the family and the provision of £300,000 for family mediation services — double its funding last year. I support the additional funding for the Legal Aid Board which will allow a service to be provided outside Dublin.
Minister for Equality and Law Reform (Mr. Taylor): I thank the Deputies who addressed the House during the debate and I greatly appreciate the general welcome for the legislation. I take this opportunity to congratulate Deputy Currie on his new portfolio as front bench spokesperson on Equality and Law Reform.
In my introductory address I referred to the Government's commitment to a caring society and a system of laws and administrative measures which deal comprehensively with marriage breakdown. What is being proposed in the Bill is clear  evidence of the Government's commitment in that regard. A range of issues was raised by Deputies in the course of the debate but as there will not be enough time to deal with all the points raised I shall deal with as many as possible.
In the course of the debate it was stated that much of what was being proposed in the Bill was already in the Judicial Separation and Family Law Reform Act, 1989, The judicial separation Act was very significant legislation and I acknowledge the work of Deputy Shatter in initiating the Bill which led to that Act. The Special Committee which discussed that Bill was in many ways a prototype of the committee system we now have as a standard way of dealing with legislation before the House. I had the privilege of being a member of that special committee on the judicial separation Bill.
The purpose of the Family Law Bill is to consolidate those important ancillary provisions in Part II of the 1989 judicial separation Act concerning maintenance and property orders with the new ancillary measures relating to nullity and foreign decrees of divorce, nullity and separation provided for in the Bill. However, the Bill goes much further in that it introduced a range of new provisions. It provides for the automatic attachment of earnings in certain circumstances where periodic payments are ordered; new provision is being made for certain property orders to be varied; there are significant new provisions relating to financial compensation orders and pension adjustment orders; also in nullity cases there is provision for the court to order that a dependent spouse be provided for out of the estate of the other spouse where necessary. The law on declarations of marital status is being amended; the age of marriage is being raised to 18 years and a new three months notice of intention to marry is being introduced. Maintenance provisions in existing law are being strengthened and jurisdiction of the District Court and Circuit Court is being extended. These provisions are very significant and timely.
Deputies Currie, Keogh and McManus  welcomed the inclusion of the provisions on pensions. The pensions provisions were subject to extensive and full discussion with the pensions industry and the Pensions Board and I take this opportunity to thank them for their very helpful and valuable contributions and assistance. In the course of drafting valuable fine tuning has been done on the provisions and this would not have been possible without assistance, much of it voluntary, from those who specialise in this important and complex area. I was also delighted to read reports in the media that the Irish Pensions Trust in general welcomes the pensions provisions in the Bill.
Deputy McManus raised the question of the different approaches taken to pensions in cases of judicial separation and nullity. The treatment of pensions in cases of nullity differs from their treatment in cases of judicial separation. In cases of judicial separation the parties remain married. Consequently, on the death of the spouse who is a member of a pension scheme, the surviving spouse, though separated, may still be entitled to the survivors' benefit. In other cases the terms of the pensions scheme may preclude survivors' benefit being paid because the spouses may not be residing together at the time of the death of the member spouse. In such circumstances, there is the difficulty that following a judicial separation the surviving spouse may not receive a survivor's benefit. Section 12 of the Bill is designed to deal specifically with this problem and it ensures that the court can, where necessary, override the rules of the pension scheme with a view to justice being done to a surviving spouse in need of financial support.
However, following a nullity decree a former spouse would not generally, if at all, be entitled to benefit under the former spouse's pension scheme. Section 11 of the Bill is designed to deal specifically with that and where necessary, power is being given to the courts to make an order to either “split” or “earmark” a portion of the pension.
The court in deciding whether to make  such orders must first have regard to the feasibility of making adequate and reasonable provision under the other financial and property provisions — that is section 7-10. For example, it may be decided not to make a pension adjustment order but to compensate for any loss of pension benefit by adjusting other assets.
In cases of nullity and judicial separation, while the member spouse is alive he or she can, where necessary, be ordered by the court to make payments out of his or her retirement pension to the other spouse and under the Bill, these payments may be subject to an attachment of earnings order.
While the provisions in the Bill to raise the age for marriage from 16 to 18 and requiring persons intending to marry to give three months notice of their intention to marry were warmly received a number of Deputies raised certain concerns about the three months notice provision. The notice requirement reflects the belief that marriage is an institution of the greatest importance and one that should not be entered into lightly. It also reflects the view that the taking on of marriage requires both maturity and reflection. Deputies will of course be aware that many churches already impose waiting periods.
The question of notice of marriage was addressed in the White Paper on Marriage Breakdown which concluded that the balance of arguments favoured a minimum waiting period before marriage and the provision in the Bill is in line with the three month waiting period recommended by the Oireachtas Joint Committee on Marriage Breakdown.
Having regard to all the evidence available the notice provision in the Bill is not an unreasonable requirement or a restraint on the right to marry. It is a provision framed with a view to safe-guarding and protecting the institution of marriage. I appreciate the point made by Deputies Currie, McDowell, Dukes and others that the commercial interests such as florists, hotels, and so on might exploit the circumstances where notices of intention  are open to public inspection and I will consider that view very carefully.
Deputy Currie also referred to the provision in section 33 which allows for exemptions from the notice and age requirements. The Deputy cited several examples where the exemption provision, as respects notice of intention to marry, might prove necessary. I would agree that the examples he gave are likely ones where exemptions might be given and indeed there may be many others. In any event, the decision to exempt parties from the age and notice requirements will be a matter for the court.
Deputy McManus queried the form that the proposed constitutional amendment on divorce will take. The White Paper on Marriage Breakdown has helped to focus attention on various options for amendment of the Constitution and it sets out the details of possible divorce legislation including the substantial powers which the court would have to make orders in support of dependent spouses and children. In the preparation of the White Paper views from interested groups and individuals were sought and the wide range of submissions which have been received are being taken into account in the context of finalising my proposals. All aspects of divorce are being looked at not only in my Department but in other Departments which are also involved. The clear intention of the Government is to deal with matters as comprehensively as possible in the lead-up to the referendum and to face all issues in a considered and responsible manner.
The definitive proposals of the Government for an amendment of the Constitution on divorce will be in the form of a Bill since a precondition of the holding of any referendum is the initiation of a Bill in the House. It is the Government's intention to proceed with the necessary legislative framework as quickly as possible with a view to holding the referendum in the autumn.
|Last Updated: 22/05/2011 01:55:30||Page of 67|