Wednesday, 1 February 1995
Dáil Éireann Debate
An Ceann Comhairle: Due to a typographical error in lines 8-11 of amendment No. 84 in the name of the Minister for Equality and Law Reform on the green list of amendments, dated 25 january 1995, the words “for a consideration of such amount as would secure that on the disposal” appeared twice.
Recommittal is necessary in respect of amendment No. 1 as it does not arise out of Committee proceedings. Amendments Nos. 1, 2, 4 to 17, inclusive, 19, 20, 22, 24, 26 to 29, inclusive, 32 to 35, inclusive, 37, 38, 39, 41, 42, 44, 50 to 61, inclusive, 63, 64, 68 and 69 form a composite proposal and I suggest that they be discussed together. Is that agreed? Agreed.
Deputies will be aware that the scope of the Family Law Bill is very wide. The Bill deals with the courts' jurisdiction in cases of nullity, strengthens the law on maintenance of spouses and children and repeals and re-enacts with more comprehensive provisions the courts' powers to order support of spouses and children following a judicial separation by, among other matters, giving the courts power to make orders in relation to occupational pensions. It empowers the courts to make declarations of status, that is to say declarations on the validity of a person's marriage and on the recognition by the State of foreign decrees of divorce. It allows the courts to make financial and property orders consequent on the grant of decrees of  nullity. It raises the minimum age of marriage from 16 to 18 years, provides for a notice of intention to marry and puts the reporting role of the probation and welfare service and health boards in a range of family law cases on a statutory basis.
Amendments Nos. 82 to 85 will extend the scope of the Bill even further. If accepted, these amendments will result in comprehensive provisions in the Bill to deal with tax aspects of marital breakdown, namely capital gains tax, capital acquisitions tax, probate tax and stamp duty.
It was represented to me in the House and by some interest groups that, while the provisions giving the courts power in cases of nullity to make financial and property orders, including orders to enable provision to be made out of the estate of the parties to an annulment, are welcome and overdue, there is the possibility that those powers could be open to challenge on the basis of constitutionality. In regard to those powers Deputies who are members of the select committee will recall that a number of amendments were made at the select committee to strengthen the provisions further. Those amendments were framed in a way which would require the courts to take into account the interests of all parties concerned, including the rights of parties to a marriage which is contracted after the annulment of the marriage of either of those parties.
Some Deputies questioned in particular the validity of rights given to parties to an annulled marriage in cases where the marriage is void and where there never was a marriage in the eyes of the law. Concerns were expressed only in relation to the rights of the “spouses” in question. I use the word “spouse” even though they are not technically spouses. The same concern did not arise in the case of children because the law already gives those children the right to be maintained in the same way as children of a valid marriage. I emphasise that the provisions in the Bill on nullity were based largely on those contained in a  paper prepared by the Attorney General in 1976 which took account of the laws in other jurisdictions and they were contained in the 1992 White Paper on marital breakdown.
As a matter of policy, I am satisfied that the parties to a marriage which is annulled should be in a position to apply to the courts for maintenance and other orders in support of their welfare, including orders in relation to the home in which they may have resided together for a considerable time. I am now of the view, however, that it would be better to provide for those matters, perhaps in a modified form, in separate legislation. To proceed in that way would also avoid delay in implementation of the wide-ranging measures elsewhere in the Bill.
To allow for deletion of the nullity provisions it has been necessary to provide for a total of 50 amendments: amendments Nos. 1, 2, 4-17, 19, 20, 22, 24, 26-29, 32-35, 37-39, 41, 42, 44, 50-61, 63, 64, 68 and 69. They are being taken together. In the circumstances I described I am confident of the support of the House for the approach I am taking.
While the Bill retains the substantial provisions for support of spouses in the context of a judicial separation and in the case of foreign divorces I would not now, on the basis of the amendments proposed, also extend those powers to nullity. The aim was to have all those provisions consolidated in one Bill. In time that may be possible but Deputies will agree that the better course at this stage is to progress this important Bill without the nullity provisions.
Dr. Woods: The Minister is proposing to make approximately 75 amendments to the Bill. This represents substantial change at this late stage. We have agreed to recommital on the grounds that it appears to be necessary. When it was recommended to the Government and initiated in the House the Bill was put forward by the Minister as the cornerstone or foundation of the preparatory work before asking the people in a  referendum to amend the Constitution to enable the introduction of divorce legislation.
The Minister acknowledged that before the question was put to the people once more the issues of property, pensions and maintenance which caused so much concern in the last referendum should be dealt with comprehensively and that clear and unambiguous laws should be put in place well in advance of holding a divorce referendum. The Minister recognised that this was a necessary precursor.
We all remember of the unhappy history of the matrimonial home Bill which was expected to give women a secure share in the family home. Notwithstanding the fact that a year has now elapsed since the Supreme Court struck down that Bill the Minister has failed to bring forward new legislation to deal with that vital issue and it appears he has no proposals to address it. In the context of that disturbing failure, what amounts to the decimation of this Bill with the removal of 75 parts is particularly depressing. Above all, there is a need for great clarity and simplicity and a direct and open approach if we are to avoid confusion in the lead up to the divorce referendum and meet the legitimate concerns of citizens in this area.
The Minister said that the issue of nullity will be dealt with in separate legislation but did not say when it will be introduced. Will he indicate when it will be published? It is important that this legislation should be referred in its entirety to the select committee or else it should be so clear that it can be dealt with by Members in a helpful way so far as the referendum is concerned.
The Family Law Bill was supposed to address all the other financial problems associated with marital breakdown such as maintenance, property and pension adjustments and succession rights. The clear strategy of the Bill as initiated was to put in place appropriate reliefs and to cater for judicial separation and nullity so that in the event of divorce being approved by the people in a referendum  those reliefs could be extended to divorce. Whether a person sought a judicial separation or a decree of nullity their position would be recognised by the State and their rights and entitlements would be preserved under this major Bill. It is important to remember that the essential feature of this stepping stone approach was the extension of the reliefs already available in cases involving legal separation under the Judicial Separation and Family Law Reform Act, 1989, to nullity.
This Bill has now been decimated and it is unprecedented to make such major changes on Report Stage. That is an understatement in light of the amendments proposed at this extraordinarily late stage by the Minister under the guise of technical amendments but when one analyses them one finds that they strike out almost all references to nullity and the extension of reliefs to nullity. For whatever reason — I hope he will offer a good explanation — the Minister is now in the extraordinary position of being unable or unwilling to extend these reliefs to nullity as intended in the Bill as initiated and when passed by the Select Committee on Legislation and Security which dealt with the Bill on Wednesday, 18 May 1994. At column 651 of the Official Report of that date the Minister said:
The nullity issue must be addressed by the Oireachtas. The Law Reform Commission recommended measures in this regard as far back as 1984 and it is time the matter was addressed. This Bill covers a range of areas in family law and the measures dealing with nullity are incorporated in it.
All aspects of the matter, including the constitutional question, were examined with great care by the Attorney General who took the judgment of the Supreme Court in the Matrimonial Home Bill into account. This is the advice I have received and I accept it.
 I will not delay the House by going into the other questions raised but many were not answered in committee. Indeed, the Minister seemed to be certain about the line he was taking and about the constitutionality of the Bill. Now on Report Stage he has changed tack entirely and has said he recognises the possibility of constitutional challenge.
When I considered the various measures in the Bill it seemed a little strange that the provisions should be the same for judicial separation as they were for nullity. As a lay person I found that difficult to understand, although I could see that some aspects would be quite similar. Nevertheless, I questioned that immediately on reading the Bill in the past week, since I have only recently become directly involved.
Obviously there has been a major change in the Bill. There is an onus on the Minister to explain at greater length the reasons for the change, because in terms of the passage of legislation here, it is quite an extraordinary development to have such a major change on Report Stage. As I said, I will go along with the Minister in making the change. My initial feeling was that there was a need for a change but the extent of it and the major impact it has on the Bill is disturbing.
I ask the Minister to give an assurance that the original stepping stone approach to a divorce referendum is intact and if, for whatever reason, he cannot deliver on this strategy, he will tell us in an open and direct way. If such measures are not to be taken in this Bill, the Minister must move immediately to introduce separate legislation dealing with these issues. In that way they will be clarified and dealt with well in advance of the holding of a referendum.
I appreciate there is a great deal of pressure on the Minister, and his Department, with the variety of legislation with which they are dealing but it is particularly important that these issues be tackled before the Government moves forward with the divorce referendum. This can be done without  much delay but I accept it places additional pressures on the Minister and his Department.
The Bill has been altered considerably since it went through Committee Stage. There has been, of course, the addition of a number of tax provisions which will be of value. When one closely examines these tax provisions it becomes apparent that they will have little impact on the vast majority of people involved in marital breakdowns. Indeed, the apparent anomalies in these provisions are clear evidence that they have been strung together hastily in order to save the Minister from acute embarrassment over the extent of the changes which must take place. The tax provisions do not comprehensively address the tax implications of marital breakdown. This is an issue about which people are very concerned and one that frequently arises. I am glad the Minister is, in a general sense, tackling the issue of the tax implications but when one examines these provisions, it will be obvious they will not make much difference to the vast majority of people in addressing the tax implications of marital breakdown in the context of judicial separation, nullity or divorce.
The Minister must get it right on these important issues. Whatever the reason that has driven him to dismember the Bill, he should face up to the situation now rather than proceed with an inadequate measures. It would be better for all concerned if the Minister reconsidered his position with regard to the Bill. If he is prepared to give an assurance that he will introduce separate legislation to deal with these issues in relation to nullity, I will accept that as a reasonable approach on his part in the difficult situation in which he finds himself. A new Bill will, I hope, address the issues which must be tackled and which this Bill was originally intended to address. The many proposed amendments will leave those who seek a decree of nullity out in the cold. Does the Minister intend to provide for them in any other way? It is essential that  there is a well thought out scheme of reliefs for people who have attained a decree of nullity.
This is a delicate and difficult subject because one can, through legislation, create a situation whereby people will see no value in seeking a decree of nullity in that all the reliefs would relate to judicial separation or to divorce. In effect, we could be disadvantaging those who might, in accordance with their own consciences, be interested in seeking a decree of nullity. It is most important, therefore, that we get these measures on to the Statute Book as soon as possible.
In the case of voidable marriages it is not uncommon that couples may live together for many years and take on the usual variety of financial commitments and assets, the house, property and commitments to dependants. At present there are no statutory reliefs for them. As far back as 1976 it was recommended to the then Attorney General that statutory reliefs be provided in this area. In 1984, the Law Reform Commission in its report on nullity stressed the need for similar statutory reliefs.
Report Stage is a difficult one for discussion. Members can only speak once and that is a limitation as Members do not have the opportunity to questions the Minister on proposed measures. That is one of the reasons why it would have been preferable to recommit this Bill to the select committee and continue the debate which was taking place there. In fairness that committee raised that issue, identified the possibility which is now accepted and recognised by the Minister and expressed concern about it. However, the committee was prepared to go along with the steps taken by the Minister at that stage. I assume this measure is not being used as a device by the Minister. I assume also that he is facing a genuine difficulty and that the quickest way to get himself out of that dilemma is to remove the 75 Parts — that is why I used the word “dismember”— from the Bill agreed in select committee.
 We on the Opposition side of the House do not get a comprehensive opportunity to discuss or question the changes because one may only speak once on an amendment on Report Stage. One could insist on speaking on every amendment but I do not want to do that. I realise the Minister has found himself in this situation and that this is probably the quickest way of dealing with it, but it is not the best way to handle a Bill. The Minister was right in the first instance — it would have been preferable to include the issue of nullity in this Bill and have a more comprehensive Family Law Bill. I would like the Minister's assurance that he intends to bring in further legislation as a matter of urgency. Otherwise we will be dismembering this major piece of family law without catering for those who look to us to provide remedies and reliefs in the areas of judicial separation, foreign divorce and nullity. I trust the Minister will deal with the issues I have raised. We will certainly facilitate him in processing the Bill through the House.
Ms Keogh: Many of us will not recognise this Bill as the one originally introduced in the House. It has been a particularly difficult one for the Minister to deal with. There were enormous changes to it on Committee Stage.
Ms Keogh: I am sure we will get it right eventually. The Second Stage was debated on 24 February 1994, almost a year ago, which shows how tortuous and difficult it has been. I will not rehash the Second Stage debate but it was anticipated then that there would be difficulties, and I was one of those who adverted to the problem of nullity at that time. I realise the Minister does examine points that are made and, if not immediately, eventually may take them on board and, in this case, has had to change the Bill. I remarked that the Bill mentioned nullity and separation in the same breath when the courts had been at pains to  keep them apart, and that the Bill repeals the provisions of the 1989 Act, re-enacts it and includes nullity. From that point of view I support the Minister's amendments. It seems that the Bill was not properly thought through at the time.
My view of the Bill came about from talking to practitioners and people who are involved. A point that was made at the time was that we were moving from a stage where there were relatively few annulments to a stage where an annulment is regarded as divorce, Irish style, and the next step is divorce. The Minister's view was that the Circuit Court should hear cases. My fear at the time was that there would be an enormous increase in the number of cases which would flood a court which was already overburdened. Now we will have to have yet more legislation.
The Minister's portfolio is full of proposed legislation and the trouble is that when we want legislation, particularly in the field of family law, we want it now and, as we have seen, that is virtually impossible because it is such a minefield. Now, because of the amendments the Minister has brought forward, we have to have new legislation. I wonder when we will have this and what will be the implications, if any, for the divorce referendum. What are the Minister's views on that?
The Minister is making other amendments to the Bill which I will deal with when we come to them. However, I would make the general point that it is particularly difficult when one is on the Opposition benches to deal with Bills into which enormous new tracts have been inserted. I am no tax expert, and I believe the tax proposals will improve the situation, but during the Committee Stage debate on pensions, etc., many of us were out of our depth because we were faced with amendments at short notice. This is not the best way to discuss legislation. We should not have gone as far as Committee Stage with these provisions. On Report Stage one should be, so to speak, fine-tuning the legislation, not changing it completely. I  am quite unhappy that we should at this stage be addressing amendments that considerably change the nature of the Bill, although I am glad the question is being addressed. Had this been dealt with on Committee Stage what we are doing today would be unnecessary.
I have no grounds whatsoever for objecting to the amendments but, on the wider question of how legislation is presented, we should not have to agree to amendments on Report Stage that could have been taken on board at an earlier stage. The contributions on Second Stage pointed to difficulties that might arise. I am, therefore, disappointed that we had to wait until Report Stage to address them.
Mr. O'Dea: I agree with some of what Deputy Keogh has said. I was amazed that at this late stage the Minister was forced to withdraw a substantial portion of the Bill because of advice he had received as to its unconstitutionality.
Mr. O'Dea: Presumably the Minister would not proceed with unconstitutional legislation. My understanding is that this Bill would have been vetted initially for unconstitutionality by the office of the Attorney General. I will not dwell on the issue of personalities but it surprises me that the Attorney General's office did not see the constitutional difficulties which have emerged at this very late stage. I accept fully that following this advice the Minister has no option but to withdraw the amendments. We are all aware of the fate of the Family Home Bill which was struck down by the Supreme Court. I do not know if there are proposals to replace it but I presume the Minister will address that issue when he replies. If this Bill, however, were to suffer a similar fate it would be absolutely catastrophic from the point of view of the divorce referendum. The Minister will be aware that  the main problem with the previous referendum on divorce was uncertainty but this legislation is designed to deal with that and provide answers to questions. Will the Minister assure us that he has now received very clear advice that the Bill as amended, meets the requirements of the Constitution and that as far as the Attorney General's office is aware there will be no further difficulties with it?
I understand that the Minister will bring in separate legislation on nullity and presumably it will stand apart from the provisions of this legislation. I ask the Minister for an assurance that this Bill is constitutionally sound because I would not like to see further slip-ups in this regard.
Mr. Taylor: There is a large number of amendments but I think Deputy Woods is gilding the lily because the overwhelming bulk of amendments are directed at a specific objective, which is taking the nullity provisions out of this Bill. It is not quite as overwhelming or such a decimation of the Bill as he described it.
The purpose of the Bill is to cover consequential orders and the situations of domestic judicial separations, foreign judicial separations, foreign divorces and nullity. It is the nullity aspect that is now being deleted from the Bill and I can assure Deputy O'Dea that I have been advised that the Bill is fully and entirely constitutional and that there is no possibility of any successful challenge to it.
The position on nullity was raised by a number of Deputies on Committee Stage and perhaps earlier. As Deputy Keogh has said, I always keep and open mind on these things and when questions are thrown into the arena it is my responsibility to consider them seriously. I put the matter no higher than that, with the inclusion of nullity provisions, there would be a possibility  of challenge on a constitutional basis. My feeling was — and I am grateful for the support of the Deputies opposite in this regard — that even that element of risk was too high to take and I did not want to have even the possibility of a challenge to this Bill left open. I sympathise with people in void or voidable marriage situations. There are cases of hardship and that branch of the law has been neglected for a very long time. Having thought about the matter very carefully and taken into account the contributions of Deputies from all sides of the House on Committee Stage, I concluded that the prudent thing to do was to delete the nullity provisions from this Bill.
As I said in my opening statement, I certainly intend to examine all aspects of nullity, which, as far as I recall, has never been touched. It needs careful examination in regard to the aspects of it dealing with consequential orders, property and so on. Also the grounds for nullity are antiquated and based on Church laws going back to the 18th century. The question of nullity, including the grounds for nullity and the consequential orders following on a decree of nullity, is a very complex area and I think it would be a major contribution if I was enabled and had the opportunity during the remaining term of this Dáil to bring in legislation in this area. It is my intention to conduct an examination and should it be possible nobody will be more pleased than I, but I am not in a position to give a commitment on the timescale. As the Deputies opposite know, and to which they kindly referred, we have a very heavy schedule of work ahead of us. The question of nullity will be very much to the forefront of my mind and I would very much like to introduce legislation to cover all aspects of it.
Mr. Taylor: No, it is quite disconnected from the referendum. Nullity is disconnected from divorce. In cases of  nullity we are talking about a situation where there never was a marriage so the question of divorce simply does not arise in that context. It stands apart and has no bearing on the divorce referendum. In divorce we are talking about dissolution of marriages but that does not arise in the context of nullity. I can assure the Deputies opposite that the stepping stones, as Deputy Woods puts it, are still intact and are not in the slightest degree affected by the deletion of the nullity provisions from this Bill. If they were essential that would have been a different matter altogether. The key factors in the Bill so far as the blueprint for divorce is concerned are the provisions dealing with foreign divorce, and in the event of the people giving an affirmative decision in the referendum, then that blueprint applicable in the Bill to foreign divorces would be re-enacted to apply to domestic divorces.
I thank the Deputies opposite for their understanding of the position, which is somewhat unusual but this is unusual legislation. As Deputy Keogh rightly pointed out, it is difficult and complex enough. The reason that our parliamentary system involves so many stages of a Bill — five stages in the Dáil and five stages in the Seanad — is to ensure that all these matters are considered very carefully and at length. With no fewer than ten stages provided in all between the two Houses, which are being used to the full and to the benefit of our democratic system, this legislation has been produced with the assistance of the skills and knowledge of Members' from all sides of the House who have made contributions which as I have said, I very much welcome and which, as Deputy Keogh has said, I have taken on board.
Dr. Woods: I think the Minister is making a mistake by not tackling separately the question of nullity. I ask him to think again about that before the referendum is held. The very reason it was included in the Bill in the first instance was to ensure that measures would be adopted on nullity at the same time as  the other areas. I know some people have fewer concerns about nullity than others but I ask the Minister to think again about it. We will not, however, oppose the amendments at this stage.
“(b) Upon the remarriage of the spouse in whose favour an order is made under paragraph (a) or (b) of subsection (1), the order shall, to the extent that it applies to that spouse, cease to have effect, except as respects payments due under it on the date of the remarriage.”.
 Section 5 (b) provides that where a periodic payments order is made in respect of the spouse, the order shall cease to have effect on the remarriage of that spouse. Deputy McManus put down an amendment on Committee Stage to provide that any such order should cases only in so far as it related to the spouse concerned and not in respect of the dependent children. I accepted the principle of the amendment but had certain reservations regarding its precise wording. I undertook to examine the wording between Committee and Report Stages. The amendment now proposed provides specifically that the order will cease only to the extent that it applies to the spouse in question and will not affect the benefit to the children.
This is a drafting amendment which makes it clear that the court, in making a property adjustment order, may exclude the making of an application for a variation of the order under section 18 of the Bill. Amendments Nos. 45 and 47 are consequential on amendment No. 21.
The Minister was not prepared to take this amendment on board on Committee Stage. One case I know of prompted me to put down the amendment. Many people want a clean break settlement particularly where children are not involved. It copperfastens the idea that the agreement reached is final. It is over and done with and there will be no revisiting of it. People fear that an agreement may be revisited, in other  words, that the agreement arrived at is not the final settlement. The purpose in putting down the amendment is to copperfasten a clean break where people want to put the past behind them and do not want to revisit it again.
The Minister said spouses already have this right. Even though they have the right in relation to agreement, they have the right to revisit that agreement. I ask him to re-examine the amendment and see if he can take it on board.
Mr. Taylor: The amendment purports to give spouses who separate the right to agree on a distribution of property between them. As spouses already have this right there is no need for the amendment. I must oppose it. It does not add anything to the existing position. It is open to parties to enter into separation agreements distributing property and dealing with other rights and many of them do. There is provision for such agreements to be made rules of the court by a simple ex parte procedure. That has the effect of translating the terms of the agreement into a court order. There is no need for the amendment as people do that all the time. If the amendment were put into the Bill it would cause confusion. The position is quite clear and is availed of by thousands of people.
Dr. Woods: The point is that this amendment, tabled by Deputy Keogh, would render it final and absolute, constituting a full and final settlement of all such issues between the spouses. Quite often such an arrangement could operate to the disadvantage of one spouse, quite possibly the woman. While the amendment relates to property only I am somewhat concerned that the wife could be driven into a bad bargain. I  accept that Deputy Keogh is endeavouring to have finality, an attractive proposition in many ways, but I have reservations about it. In present circumstances the essential difference is that one can revert to seeking a variation whereas what is sought in this amendment is a deed of separation constituting a full and final settlement of all such issues between the spouses. While it sounds a very clean arrangement, I am concerned that in practice it might transpire differently.
Dr. Woods: Yes, circumstances can change as can assessments of the values of assets/property. Lest it would work out to be a bad bargain for one or other spouse, usually the wife, I have some reservations about this aspect.
Mr. O'Dea: I am endeavouring to understand the implications of this amendment. If a deed of separation is drawn up can parties go back only by agreement to have a property adjustment provision varied or does it have to be made by an order of court? Is there a difference between drawing up a deed of separation, signed by both parties, and drawing up a deed of separation and getting a court to sanction that reversal?
Mr. Taylor: As I understand the position, if the agreement is drawn up and nothing further is done with it, that is deemed to be a binding contract between the parties each party being answerable for the responsibilities in it. On the other hand, if in the procedure to make that separation agreement, a rule of court is taken — which procedure is laid down in section 8 of the Family Law Act, 1976 — my understanding is that gives the status of what is agreed in that separation agreement the status of an order of the court. Therefore, one is not talking about a contractual arrangement between the two parties to it, per se, one is talking  about an order of the court; it is as though it went to a judicial hearing and these various orders were made by the court.
Mr. Taylor: There is always provision for variation; one can always go back. If new circumstances arise, one can always revert to the court under an existing separation agreement, even under orders made on a judicial separation. I am advised I am correct in that one can go back to the court later because new circumstances arose. For example, circumstances might arise in which a couple might have been in poor circumstances at the time of separation and a very low maintenance provision might have been made for the wife. It transpires later that, say, the husband wins the lotto, when it would be unfair to say: Ah, well, the order was made on the old basis, a further application cannot be made”. It is only reasonable that that option should be available as and when new circumstances arise.
Mr. O'Dea: Yes, but the provisions of this amendment would not affect maintenance, people could revert to the court anyway for maintenance. I thought this had to do with the division of property only. Therefore, if a separation agreement is made an order of court and a variation sought at some time in the future, can one or other party seek to vary it or does the application for variation have to be written by prior agreement; can both parties go together, or can one party go?
Acting Chairman: I have allowed some latitude because I understand the questions posed by Deputy O'Dea might be fundamental to the Minister's decision whether to accept the amendment. I have allowed some latitude in cross-questioning on it but I would point out that we are on Report Stage and it is really out of order. Will Deputy Keogh reply?
Ms Keogh: I perfectly understand the point the Minister made, with most of which I am content, but I am thinking about the occasional circumstance only which relates solely to property, as is stated in the amendment, the objective being that there be a final settlement between the parties. We must remember that some people want to put the past completely behind them and, in such circumstances, it would be preferable that a full and final settlement be agreed. I do not foresee any difficulty arising there — I suppose we are talking about a very occasional circumstance — but it tidies up an area needing it.
I will not press my amendment to a vote but I should have thought the Minister could have taken on board the fact that, when something is over and done with, that is absolute finality, which is the way some people want to perceive it.
Acting Chairman: Amendment No. 40 in the name of Deputy Keogh arise from committee proceedings, amendment No. 70 is related and I propose that amendments No. 40 and 70 be taken together by agreement. Is that agreed? Agreed.
In page 20, line 31, after “family” to insert “and there shall be a rebuttable presumption that the work of the spouse within the home should, unless there are compelling reasons to the contrary, give rise to a joint interest in the family home”.
I tabled this amendment in an attempt to secure recognition of the work of the spouse within the home. The last time I moved this amendment I was unsuccessful in having it accepted. However, now that there has been a change of Government and some members of the former Opposition supported this amendment, I am hopeful that it will be accepted and that at long last the work of the spouse in the home will be given the recognition it deserves. The Minister has heard me speak on this matter four times so he is aware of what I will say. I have found it difficult to get legislation in this area passed.
Deputy Woods referred to the legislation dealing with the matrimonial home and how disappointed we all were when the Supreme Court faulted the Bill despite a great deal of work undertaken by Members on all sides of the House to ensure that it would be passed by both Houses of the Oireachtas. An opportunity arises here to enshrine this  clause in the legislation. The Minister has not given any indication as to whether he intends in the near future to revisit the whole area of joint ownership of the family home. Having failed in Private Members' time to introduce a Bill to deal with this matter and at other times, I am attempting once again to insert a clause in the legislation that will recognise the work of the spouse within the home. The law provides that where the matrimonial home has been purchased in the name of the husband and the wife has either directly or indirectly made contributions towards the purchase price or towards the discharge of mortgage instalments, the husband will be held to be a trustee for the wife of a share in the house roughly corresponding with the proportion of the purchase money represented by the wife's total contribution. Such a trust will be inferred when the wife's contribution is of such a kind and size as will justify conclusion that the acquisition of the house was achieved by the joint efforts of the spouses. Where the wife's contribution has been indirect, such as contributing by means of her earnings to a general family fund, the courts will, in the absence of any expressed or implied agreement to the contrary, infer a trust in favour of the wife on the grounds that she has to that extent relieved the husband of the financial burden he incurred in purchasing the house. That summary of the legal position was given by Mr. Justice Henchy in 1986. The Supreme Court ruled that anything that would help to encourage the basis of full sharing in property values as well as in every other way between the partners of a marriage must directly contribute to the stability of the marriage, the institution of the family and the common good. We are all agreed on this and there should not be any difficulty about it. I have framed an amendment that will give due recognition to the work of the spouse within the home. As the Acting Chairman said, the two amendments are related and amendment No. 70 which I framed gives a more detailed analysis  and appreciation of the difficulties in this area than amendment No. 40.
The Minister said he is committed to dealing with the joint ownership of the family home and I believe acceptance of this amendment would go some way towards recognising the contributions made by the non working spouse within the home. It would put a value on the work within the home and having regard to social circumstances, it would value the work of women because mainly women work within the home. Regarding the area of family law, women who work within the home to some extent feel threatened because their rights to joint ownership of the family home are not provided for in legislation. I look forward to support on this amendment. I did not accept what the Minister said about it on Committee Stage and I hope he will not repeat the argument he used then. What I have said is not open to rebuttal.
Mr. Taylor: I will take amendment No. 70 first. This amendment proposes to enable a spouse who has made a non-financial contribution to the household to go to court with a view to establishing an ownership interest in the matrimonial property in proportion to that contribution, up to a maximum of 50 per cent.
I appreciate that the Deputy is seeking to give some legislative recognition to the contribution to the family made by a spouse by working in the home and caring for the family. We are all conscious of the value of that contribution. It has already been given such recognition in Part II of the Judicial Separation and Family Law Reform Act, 1989, which is being repealed and updated by this Bill.
These provisions deal with situations where proceedings for judicial separation have begun and where the matrimonial property may have to be divided between the couple concerned. In those cases it is essential that the decision of the court should take fully into account any non-financial, as well as financial, contributions made by each of the  spouses and particularly the contribution made by a spouse in looking after the home.
This amendment is dealing with spouses who are not separating or proposing to separate. It provides that, if one of those spouses wishes to assert an ownership right in the matrimonial property based on non-financial contributions and the other spouse disagrees, the dispute can be settled, and can only be settled, by the court. This litigation would involve substantial expense and, irrespective of the outcome, it would adversely affect the marriage relationship.
It is true that under the present law financial contributions by a spouse towards the acquisition of matrimonial property can give rise to a proportionate ownership interest which can be determined by the courts in default of agreement, but there is a world of difference between establishing the extent of financial contributions, which are ascertainable and difficult to dispute, and that of non-financial contributions made by either spouse from the date of the marriage up to commencement of the litigation. This uncertainty would increase the likelihood of disputes and consequent recourse to the courts and it would also increase the costs of the litigation, which would normally have to be borne by the defendant spouse, irrespective of the outcome. It might also be open to a spouse who had successfully established a share in a matrimonial property of less than 50 per cent to return to the courts more than once to get credit for work carried out in the home in the meantime and eventually build up his or her share to the 50 per cent limit. In contrast, the determination of non-financial contributions on the occasion of a separation is a once-off evaluation of those contributions made during the period when the couple were living together.
Moreover, I would not accept, as has been suggested, that such a provision would help spouses to get their partners to convey to them formally a share in the family home or other matrimonial  property, on the basis that otherwise proceedings would be taken against them. Indeed I believe that such an implied threat of litigation could have the opposite effect.
What is wanted most by spouses who work in the home and who do not want to engage in litigation with their partners is some practical recognition of their contribution. The real deterrent is the formality and costs associated with putting the family home into joint names. I am giving consideration to whether legislation would facilitate more simplified and less costly arrangements. Such provision might enable couples who live in harmony to give full and effective recognition to the contribution made by the spouse who works in the home.
I regret I cannot regard the Deputy's amendment as other than a minimalist approach to the problem we are all anxious to solve, that is, to establish joint ownership of the family home as the norm. By encouraging litigation between spouses it could do more harm than good.
The Deputy's related amendment — No. 40 — to paragraph (f) of section 16 (2) proposes that there should be a rebuttable presumption that a spouse's work in the home should give rise to a joint interest in the home unless there are compelling reasons to the contrary.
I understand the Deputy's motivation in putting down this amendment but we are dealing with the matters to which the court must pay particular regard when making an order under various sections of the Bill. These orders could include maintenance orders or, say, pension adjustment orders where the grant of a property adjustment order, giving a spouse an interest, or an enlarged interest, in the family home, might not be the best or most appropriate option for the parties.
In those circumstances obliging the court to give an ownership interest in the home to one of the spouses might be contrary to that spouse's best interests. I appreciate that the presumption is  expressed to be subject to there being compelling reasons for not granting a joint interest in the home but it would be much better to leave the fullest discretion to the court to do justice in the circumstances of each particular case, once it has had particular regard, as the section requires, to any past or future contributions made by each of the spouses to the welfare of the family.
Dr. Woods: I appreciate the Minister's difficulties which have existed for some time, particularly since the Supreme Court overruled an aspect of the former family home Bill. However, I support the spirit of this amendment which proposes that there should be a rebuttable presumption that the work of the spouse within the home should, unless there are compelling reasons to the contrary, give rise to a joint interest in the family home. I believe most Members would share my concern that the contribution of a spouse who works full-time or to a large extent in the home should be recognised. I am sure most Members want that problem solved.
It is not sufficient for the Minister to say we will allow the courts to decide. That has happened far too often and, in many cases, is disadvantageous to women because more than 90 per cent of cases affect the female spouse. It is time we addressed this issue and found a solution which will not be overruled by the Supreme Court. Deputy Keogh put forward a reasonable proposal to meet this difficulty but, as is the case with all amendments from the Opposition, the Minister stated that there are technical difficulties which need to be resolved. The Minister and his staff should provide such advice. There has been a great deal of talk recently about openness, accountability and transparency. Part of that openness should include the availability of drafting  advice to Members of the Opposition when they table amendments such as that by Deputy Keogh. In other parliaments such drafting advice is available not only to departmental officials but to members of the parliament. That is real openness and transparency, effeciency and professionalism. The Minister, in effect, said that the idea behind the amendment is worthwhile, but would require a great deal of thought, drafting and so on.
I am sure the essence of this amendment would have a great deal of support here. In a physical sense, the woman working in the home contributes towards its maintenance. The house would not be as well maintained if she was not working in it. She also contributes greatly to the stability of the home and the family. Women working outside the home are seeking the option to spend more time at home through social welfare and labour legislation. They want to spend more time working in the home as well as participating in the workforce. This matter was mentioned yesterday in the context of the adoptive and parental leave legislation. People should have an option in that regard.
I support Deputy Keogh's amendment. We are anxious to have the matter of joint interest in the family home resolved. The Minister said he wants to simplify the legal aspects involved in both spouses sharing an interest in the family home. Much work needs to be done in that area. The majority of young people provide for this when buying their homes, but many people would welcome the simplification of the technicalities and legalities involved.
I welcome the Minister's proposal to simplify the matter, but I also support the objective in Deputy Keogh's amendment. It is another example of where the legislation needs to be addressed urgently and should not be left for the courts to decide. Most people want the position of the spouse in the home protected in legislation.
Mr. O'Dea: My colleague, Deputy Woods, mentioned openness and transparency. The only transparency I see here is the transparency of the excuses offered by Ministers not to do what they promised in Opposition. This is a worthwhile amendment and I support it. The Supreme Court decided that the family home Bill was unconstitutional because it was designed to confer a definite interest on the non-owning spouse. This amendment does not do that. It simply creates a presumption and a rebuttable one at that. As there is no definite transfer of an interest to the other spouse this amendment is constitutional. If I understood the Minister's argument correctly he said it would encourage litigation between husband and wife. That is not real. If this amendment is accepted every non-earning spouse will not rush to the courts to have the presumption accepted by the courts. If people want to litigate they can, but the reality is that people will only litigate when there is trouble.
There are a few possibilities. If this amendment is accepted and if there is litigation in a break-up the courts can consider that presumption and can decide the presumption is discharged if there are no compelling reasons to the contrary. If the parties wish to settle their differences by way of agreement, without litigation, that this presumption will exist in law will be a powerful bargaining counter for the more vulnerable party.
Prior to the Supreme Court decision the family home Bill created a sense of security in many spouses throughout the country. The Minister, as a former practising solicitor, will know that often lawyers were approached by spouses, almost invariably the wife on her interest in the family home and it was almost impossible to advise her. The law — Deputy Keogh mentioned a 1986 case — on non-financial contributions is evolving and is not settled yet. I envisage that in the future the courts will take a more liberal non-earning spouse oriented approach. We may reach a  stage when this amendment will become law.
The family home Bill created a great sense of security. It was possible to assure every spouse who had forebodings for the future and who felt there might be difficulties down the road that she would definitely have a half share in the family home but that Bill was found to be unconstitutional. This amendment is a good substitute and I compliment Deputy Keogh on tabling it. I would like to be able to say to spouses who foresee trouble that there is now a law providing for a presumption that if they did not neglect their duties in the family home, were not racegoers, gamblers or were drinking every night, the courts will almost certainly find that the spouse has a half share. This amendment is a very good substitute for the family home Bill; a Bill, to which the Minister was committed, and in which I was tangentially involved. It had created a great sense of security for spouses. It gave me great satisfaction to advise women who came to me that I did not have to explain High Court decisions that might be taken into account. I did not have to ask whether the spouse made a direct or indirect financial contribution and so on. This amendment will send out the message that, despite the Supreme Court decision on the family home Bill, we are anxious to assist non-earning spouses. Where people are trying to settle their differences it will be a powerful bargaining counter. In the event of litigation in the case of break-up it will be a matter for the court to decide. It will not encourage spouses to rush out immediately and litigate to establish their interest. They will wait for the presumption to operate if necessary.
Ms Keogh: I am pleased with the support I am receiving for this amendment. My heart is beginning to lift in relation to the protection of women in our society when we seem to have consensus about the family home — I hope this support will come through on a vote.
Ms Keogh: The principle of joint ownership of the family home was supported by Opposition parties. The legislation had a long and difficult passage through the House and many difficulties were dealt with excluding the one on which the Bill fell. I am trying, in the most simple way possible, to give recognition to the work of a spouse within the family home. Security of ownership is a simple ambition of mine but it is deeply felt particularly by women. If the legislation does not provide for a half share in the family home legislation should provide something that goes a long way towards allaying women's fears and gives them the security so many want.
On Committee Stage I did not agree with the point made by the Minister — I realise I said on the Occupiers' Liability Bill that we are a litigious nation — that there would be litigation on the family home just because there was a  presumption of joint interest. That does not hold water. Women deserve recognition of their role within the home, the work they do and an acknowledgement of their role in society. It does not give any credence to the Minister's efforts in family law in general when at every opportunity to enshrine this recognition in legislation he finds fault with the efforts that I and others have made. He is in a difficult position in the whole area of family law. He is supposed to be the one who will champion the divorce referendum and I hope divorce legislation will be in place during the course of 1995. If this issue is solved to the best of our ability and if people recognise this it will, in some small way, make his task a little easier.
I do not know why the Minister is adopting this attitude to amendment No. 40 but I would understand his objection to my amendment No. 70. In terms of approaching legislation in a simple and straightforward way and in an effort to include the type of amendment we need I am satisfied — I never said my abilities as a draftsperson were perfect — that this is a good amendment and I intend to press it.
Browne, John (Wexford).
Burke, Raphael P.
de Valera, Síle.
Ellis, John. O'Dea, Willie.
O'Malley, Desmond J.
Hilliard, Colm M.
Nolan, M. J.
Ó Cuív, Éamon. Quill, Máirín.
Browne, John (Carlow-Kilkenny).
De Rossa, Proinsias.
Dukes, Alan M.
|Higgins, Michael D.
Noonan, Michael. (Limerick East).
“(b) A spouse who, with just cause, leaves and lives apart from the other spouse because of conduct on the part of that other spouse shall not be regarded for the purposes of paragraph (a) as having deserted that spouse.”.
On Committee Stage there was a degree of confusion about full financial disclosure and the Minister agreed to table an amendment dealing with this issue on Report Stage, which he has done. However, I am surprised at the wording of his amendment. Everyone agrees with the principle of disclosure and the difficulty on Committee Stage was that the Minister felt that this principle was covered by the rules of court. He subsequently said he would look again at this issue.
It is very important that parties be required to make full financial disclosure, including property and other assets. Why has the Minister dealt with this issue in a more qualified way and why are children involved? There may be disclosure to brothers and sisters. What is the Minister trying to achieve in his amendment? I am concerned about his orders for disclosure, which can be a lengthy process. The principle of the amendment has been accepted and there is no need to debate it. However, I am somewhat bemused at the Minister's decision not to accept my amendment.
Mr. Taylor: On Committee Stage, I agreed in response to an amendment tabled by Deputy Keogh, to look again at the inclusion of a provision for the disclosure of information relating to the property and income of parties in proceedings. I accept the principle of the Deputy's amendment but there are drafting and technical reasons as to why my amendment would achieve better  the desired result. It is for that reason only that I oppose her amendment and ask her to support my amendment No. 73.
I have included in my amendment a responsibility on a dependent member of the family to make disclosure of his or her property which would have a bearing on property distribution positions in a case arising under the Bill. I want to give an example of why this is necessary. A wealthy child in a family — he or she might have inherited a substantial sum of money from a grand-parent — would have a bearing on the distribution and maintenance position of the family whose case was before the court. That child might not necessarily be a party to the proceedings.
The differential is marginal but the important point is that the principle of the amendment has been accepted. In those circumstances I ask the Deputy to withdraw the amendment and agree to my amendment No. 73, which has been approved by the parliamentary draftsman.
Dr. Woods: Under amendment No. 48 parties to an order would be required to make full financial disclosure to include income and property of the parties, whereas amendment No. 73 states that “such particulars of his or her property and income as he or she may reasonably require for the purposes of the proceedings”. There is an essential difference in that there will be a limitation on the extent of the disclosure. I understood that this was already provided for under the rules of court but the Minister's amendment will make specific provision.
Dr. Woods: That is to be welcomed. The Minister has gone a long way to meet the principle of amendment No. 48 but his amendment does not go as far. Nevertheless I would be inclined to go along with him as he has made a substantial contribution.
Mr. O'Dea: I also welcome the Minister's amendment and the extension to dependants, which is necessary. Nevertheless, as he rightly said, while the current practice will be covered by law, Deputy Keogh's amendment goes much further, and I am not clear on the reason the Minister is not going that far. It would be eminently logical to do so. While I welcome the Minister's amendment it will not change anything. If the court is to make a settlement between two parties or if the two parties wish to reach agreement between themselves, it is right and proper that they and the court should know about all the property owned by each party, as is required under Deputy Keogh's amendment. Otherwise, it is easy to envisage situations where the settlement would not be fair or equitable.
Ms Keogh: The Minister has accepted the principle of my amendment. While I accept the point about dependents, which has been well made, I am concerned that there is a qualification and unhappy with the phrase “such particulars of his or her property and income as he or she may reasonably require for the purposes of the proceedings”. This qualification is unnecessary; full disclosure should mean exactly that. It is important that there be openness in all separation proceedings. While I am disappointed the Minister has not accepted my amendment I am glad he has accepted the principle. I wish to press it however to indicate that I am unhappy that the Minister's amendment does not go as far as I would like.
Mr. Taylor: There is a major drafting defect in amendment No. 48 which states: “Parties to an order shall be required...” This would present a major difficulty because the information would be required well before an order was made. It is not, therefore, a question of parties to an order but rather parties to the proceedings who would require the information.
On the limitation on the extent of the disclosure —“such particulars of his or  her property and income as he or she may reasonably require for the purposes of the proceedings”— this will cover a case where a spouse makes a claim against the other which is totally unmeritorious, where this is used as a device for their own private purposes and where the court recognises the situation for what it is. Under Deputy Keogh's amendment full disclosure would be required automatically irrespective of whether this was reasonably required for the purposes of the proceedings. All the Oireachtas could expect from any litigant in such a case is what is reasonably required for the purposes of proceedings. It would not be appropriate to go beyond this.
24—(1) This section applies to a marriage that has been dissolved, or as respects which the spouses have been legally separated, after the commencement of the section under the law of a country or jurisdiction other than the State, being a divorce or legal separation that is entitled to be recognised as valid in the State.
2 (a) Subject to the provisions of this Part, the court may, in relation to a marriage to which this section applies, on application to it in that  behalf by either of the spouses concerned, make any order under Part II (other than an order under section 5 or a maintenance pending suit order) (in this Act referred to as a relief order) that it could have made if the court had granted a decree of judicial separation in relation to the marriage.
(b) Part II shall apply and have effect in relation to relief orders and applications therefor as it applies and has effect in relation to orders under Part II and applications therefor with the modifications that
(ii) section 15 shall not apply in relation to a family home in which, following the dissolution of the marriage under such a law, either spouse, having remarried, ordinarily resides with his or her spouse, and
(ii) the reference in subsection (2) (k) to the forfeiture of the opportunity or possibility of acquiring any benefit shall be construed as a reference to such forfeiture by reason of the divorce or legal separation concerned, and
 (d) Where a spouse whose marriage has been dissolved in a country or jurisdiction other than the State has remarried, the court may not make a relief order in favour of that spouse in relation to a previous marriage of that spouse.”.
26. —(1) Subject to the provisions of this section, where a spouse whose marriage has been dissolved in a country or jurisdiction other than the State dies, the court, on application to it in that behalf by the other spouse (“the applicant”) not more than 12 months after representation was first granted under the Act of 1965 in respect of the estate of the deceased spouse, may by order make such provision for the applicant out of the estate of the deceased spouse as it considers appropriate having regard to the rights of any other person having an interest in the matter and specifies in the order if it is satisfied that it was not possible to provide adequate and reasonable financial provision for the applicant during the lifetime of the deceased spouse under section 7 to 11 for any reason (other than conduct referred to in subsection (2) (i) of section 16 or desertion referred to in subsection (3) of that section by the applicant).
(4) The provision made for the applicant concerned by an order under this section together with any provision made for the applicant by an order referred to in subsection (3) (a) (the value of which for the purposes of this subsection shall be its value on the date of the order) shall not exceed in total the share (if any) of the applicant in the estate of the deceased spouse to which the applicant was entitled or (if the deceased spouse died intestate as to the whole or part of his or her estate) would have been entitled under the Act of 1965 if the marriage had not been dissolved.
(5) Section 121 of the Act of 1965 shall apply with any necessary modification to a disposition referred to in subsection (1) of that section in respect of which the court is satisfied that it was made for the purpose of defeating or substantially diminishing the provision which the court would make for the applicant concerned under this section if the disposition had not been made.
(6) Notice of an application under this section shall be given by the applicant to the spouse (if any) of the deceased spouse concerned and to such (if any) other persons as the court may direct and, in deciding whether to make the order concerned and in determining the provisions of the order, the court shall have regard to any representations made by the spouse of the deceased spouse and any other such persons as aforesaid.
(7) Where an application is made under this section, the personal representative of the deceased spouse  concerned shall not, without the leave of the court, distribute any of the estate of that spouse until the court makes or refuses to make an order under this section.”.
Section 32 as it stands requires the registrar of marriages to make available for public inspection notification of a couple's intention to marry. In the course of the Committee Stage debate many Deputies expressed concern that such a requirement could lead to harassment of couples by wedding caterers, photographers and so on. I undertook to examine the matter further and I am now satisfied that the requirement is not necessary. The effect of this amendment is to remove the requirement to publish the notification.
Dr. Woods: On a point of clarification, we went through amendments Nos. 49 to 74 and we were given a list of the grouping of amendments for the information of Members. The list indicated that amendments Nos. 49 and 74 were being taken together but in fact it is Nos. 49 to 74 inclusive.
“36.—(1) In proceedings brought under section 12 of the Married Women's Status Act, 1957, the High High Court or the Circuit Court, as the case may be, shall have additional jurisdiction in respect of property to which this Act applies—
(a) to inquire as to whether, and to find and declare that, a husband or wife, by reason of the extent of his or her non-financial contribution to the family household, has directly or indirectly enabled or assisted the other spouse to acquire or enlarge any interest, legal or equitable, in such property,
(3) An order made under this section shall not in any circumstance increase the legal or equitable share of the husband or wife in whose favour it is made to any extent greater than that of the other spouse.
(4) The jurisdiction conferred by this section is without prejudice to the powers of any Court to make a property adjustment order relating to an order for judicial separation under the law for the time being in force.”.
`(2) In subsection (1), “dwelling” means any building or part of a building occupied as a separate dwelling and includes any garden or other land usually occupied with the dwelling, being land that is subsidiary and ancillary to it, is required for its amenity or convenience and is not being used or  developed primarily for commercial purposes, and includes a structure that is not permanently attached to the ground and a vehicle or vessel, whether mobile or not'.”.
(a) each of the spouses concerned shall give to the other spouse and to, or to a person acting on behalf of, any dependent member of the family concerned, and (b) any dependent member of the family concerned shall give to, or to a person acting on behalf of, any other such member and to each of the spouses concerned.
An Leas-Cheann Comhairle: Recommittal is necessary in respect of amendment No. 82 as it does not arise out of Committee Stage proceedings. Amendments Nos. 83, 84 and 85 are related. Is it agreed to take Nos. 82 to 85, inclusive, together? Agreed.
48.—(1) Subject to subsection (3), stamp duty shall not be chargeable on an instrument by which property is transferred pursuant to an order to which this subsection applies by either or both of the spouses who were parties to the marriage concerned to either or both of them.
(b) Subsection (1) does not apply in relation to an instrument refered to in that subsection by which any part of or beneficial interest in the property concerned is transferred to a person other than the spouses concerned.”.
The areas of the tax code to which these amendments relate are stamp duty, capital acquisitions tax, capital gains tax and probate tax. Under the Bill as it stands, the court is being given power to make financial and property orders in support of a former spouse whose foreign decree of divorce is recognised in the State. The main effect of these amendments is to extend the tax exemptions which currently apply in financial and property dealings between married couples to those cases covered by the Bill where the foreign divorce is recognised here. These provisions will ensure that couples who are divorced abroad will not be at a disadvantage in terms of our tax code. The added significance of these tax provisions is that they will in substance be the same as those in any future domestic divorce legislation. I propose to deal briefly with the amendments as follows:
Amendment No. 82 exempts from stamp duty the transfer of property which is the subject of a relief under the Bill between spouses whose marriage have been dissolved abroad and the decree of divorce recognised in the State and the order provides for the transfer of property. There are already similar provisions in the law in relation to the transfer of property between spouses. The amendment also provides that the instruments of transfer do not have to be adjudicated on by the Revenue Commissioners, thereby minimising the costs involved.
The proposed amendment No. 83 exempts from capital acquisitions tax a  person whose foreign divorce is recognised here and where a specified order e.g. a relief order, an order for the provision of a spouse out of the estate of the other spouse, a maintenance order, a secured maintenance order or a lump sum order are made by the courts following the dissolution of the marriage. As a result, any deemed gift or inheritance arising from the making of such orders will be entirely exempt from capital acquisition tax. I think it only right that any property or money transferred in such circumstances should be dealt with in the same way as transfers between spouses.
The rules governing the assessment of capital gains tax on married couples are contained in section 13 of the Capital Gains Tax Act, 1975. They apply only in the case of a married couple where the wife is a married woman living with her husband. By virtue of section 2 (3) of the Capital Gains Tax Act, 1975, whether the wife is such a married woman is determined in accordance with the rules set out in section 192 of the Income Tax Act, 1967. That section provides that a wife will be treated as living with her husband unless they are separated under a court order or a deed of separation or they are in fact separated in such circumstances that the separation is likely to become permanent.
In general, disposals or transfers of assets from a husband to his wife who is living with him and vice versa are ignored for capital gains tax purposes, that is, they are treated on a no gain, no loss basis. In addition, the spouse acquiring the asset is treated for the purposes of determining indexation relief and the rate of tax on any future disposal of the asset as if that spouse had acquired the asset on the same date and for the same consideration as the disposing spouse originally acquired it.
The purpose of the section proposed to be inserted in the Bill by amendment No. 84 is to avoid similar capital gains tax treatment in the case of disposals of assets between separated spouses or, as the case may be, former spouses where  the disposal is made by virtue or in consequence of (a) an order made under Part II of the Bill on or following the granting of a decree of judicial separation or (b) a relief order made following the dissolution of a marriage to which section 4 of the Bill applies.
The effect of section 115 (a) of the Finance Act, 1993, is to fully exempt spouses from probate tax and any assets passing to him or her on the death of his or her spouse. Amendment No. 85 provides that on the death of one of the parties to a dissolved marriage, no probate tax will be payable in respect of any provision that the court, under section 26 of the Bill, makes in favour of the surviving spouse out of the estate of the deceased spouse. If the provision which the court makes consists of a life interest in property, the probate tax on that property is postponed until the death of the surviving party.
Dr. Woods: I welcome the measures, but they do not go far enough, particularly in the case of marriage breakdown. In so far as they apply to foreign divorces they are a useful improvement. Amendment No. 82 provides that stamp duty shall not be chargeable on property transferred pursuant to a relief order which, in this case, only applied to foreign divorces. That is fair enough, and we will support it. Amendment No. 83 covers exemption from capital acquisitions tax. Does that apply only to foreign divorces? If so, it is welcome.
either of the spouses concerned disposes of an asset to the other spouse, both spouses shall be treated for the purposes of those Acts as if the asset was acquired from the spouse making the disposal...
Ms Keogh: I too support the amendments in so far as they go. I realise they are restricted in their remit at present. This underlines the difficulty of bringing in a new section on Report Stage because there are questions that would benefit from further discussion. I have no difficulty with the amendment but I do object to the introduction of a new section to a Bill on Report Stage. There was also an objection on Committee Stage to the introduction of a different section. This practice makes life more difficult particularly if the section is contentious. Thankfully, this is not.
Mr. O'Dea: I welcome these amendments which apply to relief orders following foreign divorce decrees that are recognised here. What the Minister has done is a good idea. I take it to be a  signal that the provisions that apply to the taxation treatment of property and property transfers in the case of foreign divorces will, in the event of the introduction of divorce here, apply to people who would not be looking for foreign divorce decrees because they are domiciled here.
In regard to the capital acquisitions tax provisions, may I take it that a gift by a former spouse is exempt from capital acquisitions tax and that aggregation will not apply to any subsequent gift or inheritance? Favourable tax treatment will apply to property transferred in consequence of a relief order following the dissolution of a marriage. Is there some objection to making such tax treatment general so that it would apply to all ex-spouses in relation to gifts other than those received by way of relief order? In the case of marriage breakdown a relief order is made, property is transferred and the appropriate tax provisions apply as if the parties were still married. However, at some time in the future, because he has come into wealth, or is dying, or has decided that he did not provide properly for his ex-spouse in the first place or had not declared all his assets at the time, the donor party may want to give her something extra. That would be treated as a gift or a capital transfer to a stranger with tax implications and there is a substantial difference between that and a gift from one spouse to another. Is there a major objection to making the tax treatment applicable to all ex-spouses? It would seem more equitable.
Mr. Taylor: Deputy Woods raised the question of nullity. The Bill, as now framed, does not include nullity and, consequently, these provisions will not have reference to that. We are examining the question of bringing in a new Bill on nullity in due course. Certainly the tax implications of that would be considered in that context. The considerations might not necessarily be quite the same, but the tax aspect will be looked at at that time.
 To answer Deputy O'Dea's question, aggregation will not apply any more than it would following on transfers between spouses. In regard to transfers between divorced couples being treated differently for tax purposes, depending on whether or not the transfer was made as a result of a court order, that is because the Bill is confined to orders made by the courts. It was not appropriate to include tax provisions that went beyond the scope of this Bill. However, I will raise any other side issues going beyond that position with the Minister for Finance.
49.—(1) Notwithstanding the provisions of the Capital Acquisitions Tax Act, 1976, a gift or inheritance (within the meaning, in each case, of that Act) taken by virtue or in consequence of an order to which this subsection applies by a spouse who was a party to the marriage concerned shall be exempt from any capital acquisition tax under that Act and shall not be taken into account in computing such a tax.
(c) an order referred to in section 41 (a), or an order under section 42 (1) made in addition to or instead of an order under section 41 (a), in favour of a spouse whose marriage has been dissolved.”.
(b) a relief order made following the dissolution of a marriage, either of the spouses concerned disposes of an asset to the other spouse, both spouses shall be treated for the purposes of those Acts as if the asset was acquired from the spouse making the disposal for a consideration of such amount as would secure that on the disposal for a consideration of such amount as would secure that on the disposal neither a gain nor a loss would accrue to the spouse making the disposal:
Provided that this subsection shall not apply if, until the disposal, the asset formed part of the trading stock of a trade carried on by the spouse making the disposal or if the asset is acquired as trading stock for the purposes of a trade carried on by the spouse acquiring the asset.
(2) Where subsection (1) applies in relation to a disposal of an asset by a spouse to the other spouse, then, in relation to a subsequent disposal of the asset (not being a disposal to which subsection (1) applies), the spouse making the disposal shall be treated for the purposes of the Capital Gains Tax Acts as if the other spouse's acquisition or provision of the asset had been his or her acquisition or provision of the asset.”.
“51.—Subsection (1) of section 115A of the Finance Act, 1993 (which was inserted by the Finance Act, 1994, and provides for the abatement or postponement of probate tax payable by a surviving spouse)—
(b) shall apply to property or an interest in property the subject of such an order as it applies to the share of a spouse referred to in the said section 115A in the estate of a deceased referred to in that section or the interest of such a spouse in property referred to in that section, with any necessary modifications.”.
`(2) in subsection (1), “dwelling” means any building or part of a building occupied as a separate dwelling and includes any garden or other land usually occupied with the dwelling, being land that is subsidiary and ancillary to it, is required for amenity or convenience and is not being used or developed primarily for commercial purposes, and includes a structure that is not permanently attached to the ground and a vehicle or vessel, whether mobile or not.',”.
Acting Chairman: Amendment No. 89 in the name of Deputy Keogh arises out of Committee Stage proceedings. Amendments Nos. 90, 93 and 94 are related. Therefore, we will take amendments Nos. 89, 90, 93 and 94 together by agreement.
The purpose of my amendment is to abolish the outdated denominationally based rules dealing with civil and religious ceremonies. Since 1844 the statutory regime for marriage law has been denominationally based. The Minister moved an amendment on Committee Stage which we agreed to. We were of one mind in what we would like to achieve and at that time he said it was the subject of a complex review. I will not press this amendment because the point was well made, but I would like to know the position and if a review is in train.
Mr. Taylor: I thank Deputy Keogh for her help on this matter and I can confirm that my Department is undertaking a comprehensive review of the legislation and registration of births, marriages and deaths. That review is being undertaken entirely separate from this Bill.
Acting Chairman (Mr. Browne,: Carlow-Kilkenny): Recommittal is necessary in respect of amendment No. 91 as it does not arise out of Committee proceedings. Amendment No. 92 is related and amendments Nos. 91 and 92 shall be taken together by agreement.
|1863, c. 27||Marriage Law (Ireland) Amendment Act, 1863||In section 4, the words from and when either of the Parties intending mar- riage to `whose consent to such Marriage is by Law required;'|
|In Schedule (B), the fourth paragraph|
Mr. Taylor: I take this opportunity to thank you for your help and also all my  colleagues who contributed to the debate on Report and Final Stages this morning. It has been a tricky, difficult and complex Bill with major alterations on the way. I cannot give any guarantee that it might not yet be back here following amendment in the Seanad, but I know I will continue to have the co-operation of my colleagues. This difficult and complex Bill gives very many important improvements to people whose marriages unfortunately break down. It will be a major help to a great many people in that context.
Dr. Woods: This is a very important Bill but it is unfortunate that because of the events that occurred, in spite of the concerns expressed all along, the Bill has had to be altered to a great extent on Report Stage. We have made the point that this should not really happen on Report Stage and it is desirable that such alterations be dealt with earlier. Nevertheless we have co-operated with the Minister because of the importance of this Bill and the work he is doing. I have requested him specifically— because the Bill has been dismembered to a large extent by the removal of the sections dealing with nullity—to come back as a matter of urgency with legislation on nullity, providing reliefs of a similar nature for cases of nullity. It is particularly important that these reliefs are set out in advance of the referendum. I know there is a temptation to leave a great many of these matters until after the divorce referendum but it would be wiser to deal with them in advance of the referendum as they would have been if it had not been necessary to remove them from this Bill.
Having said that I welcome the work of the Department, the officials and the Minister in bringing the Family Law Bill, 1994, to this stage and I can assure the Minister that he will have our full  support in tackling issues of nullity as a matter of urgency. I have pleasure in supporting this Bill.
Ms Keogh: Finally, a year later we have come to the last stage of this Bill. It has been a very difficult process and I congratulate the Minister for his commitment to family law. It is even more difficult for him than for us on this side of the House.
I realise there is a difficulty with nullity and it behoves the Minister to act quickly on legislation but I am glad he took on board the Opposition's comments on Second and Committee Stages. I am pleased that he has been open to amending the Bill and has taken some amendments on board. However, I could not let the opportunity pass without saying how disappointed I am that my amendment concerning the joint interest in the family home was lost, particularly as I had received support from my then colleagues in Opposition, the Fine Gael Party and the Democratic Left Party.
Ms Keogh: Notwithstanding that this Bill stands alone there is still a great  deal of legislation to be brought through by the Minister. I agree with Deputy Woods that if we are to have divorce legislation it is important that we have the corpus of legislation in place before we go ahead with the referendum. The Minister should pursue the wording for the legislation on divorce in tandem and should not wait for everything to be complete.
At different stages I have said that if you want something badly enough you have to try and try again. Often Deputies in this House have had to seek election several times before being successful. We need a similar determination to maintain belief in the legislation we want enacted. I intend at every opportunity to amend or bring forward legislation that will enshrine the principle of joint ownership of the family home in our legislation.
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