Family Law Bill, 1994: Second Stage (Resumed).

Wednesday, 15 February 1995

Seanad Éireann Debate
Vol. 141 No. 17

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Question again proposed: “That the Bill be now read a Second Time.”

An Cathaoirleach: Information on Sean Fallon  Zoom on Sean Fallon  I welcome the Minister to the House.

Ms Gallagher: Information on Ann Gallagher  Zoom on Ann Gallagher  I too welcome the Minister to the House. I am genuinely impressed by the quiet but steady flow of legislation in the area of family law which reflects the Minister's real interest in such matters. He is to be congratulated on his work in this regard. Before I sat down to read the Bill, I reread the report of the Second Commission on the Status of Women which [1895] was published in January 1993. To emphasise my earlier point. I was pleased to see that many areas of concern outlined in that report have already been tackled by the Minister and his Department — maintenance, court jurisdiction, legal aid, etc.

With regret, however, I noticed the report's detailed arguments for joint property rights on marriage and recalled the Minister's efforts to bring about reforming legislation in the shape of the Matrimonial Home Bill which was subsequently ruled unconstitutional by our Supreme Court. There is a nauseating irony that such a conclusion could be reached when the Constitution expresses in Article 41.2.1º:

In particular, the State recognises that by her life within the home, woman gives to the State the support without which the common good cannot be achieved.

It seems that such paternalistic statements do nothing more than insult women by displaying a “pat on the head” mentality to reward the good little women of Ireland. To adopt an old phrase, live horse and you will get grass. It seems the Supreme Court judges were really saying: “Keep going women and things will work out.” Perhaps this is so, after a few centuries at this rate. When it came to the crunch, property, bricks and mortar, were placed on a higher pedestal than Mná na hÉireann. There is much more I could say on this subject but I will refrain to some degree.

There is a typical hypocrisy in this country which purports to value the state of marriage but continues to perpetuate inherent inequalities between a married couple, by saying that one spouse can own the property while the other is constitutionally expected to voluntarily tie herself to the kitchen sink, a sink which she does not even own. This fact reserves to husbands, who are often the sole registered owners of property, a right and dominance in family life that causes many wives worry. It places an uncertainty in their minds, of which [1896] advantage can so easily be taken. When partners take their vows perhaps the man should say “For better” and the woman should say “For worse”, while the man then says “For richer” and the woman says “For poorer”. Although I may over generalise, it should not take away from the fact that many married women have no entitlement or say in what happens the family property. Such inequality does not lend itself to good marriages.

However, there is a contradiction in the law in that the property owning spouse has a rather late repentance of sins forced upon him in the grave by the Succession Act. This allows the surviving spouse rights to the estate of the deceased for the wilight years, something of which she is not deemed worthy while the “Boss” survives. I know the Minister recognises that it is not just a matter of introducing legislation but of education and enlightenment which may eventually bring about real equality between spouses. Meanwhile, the Minister's work continues in this Bill.

As was stated in the debate last week, the Bill is wide ranging, although, I understand, not as much as originally anticipated. The Department has obviously examined the flaws in the current system and taken into consideration various reports, including that of the Law Reform Commission, on the age of marriage, the report on the jactitation of marriage and declaration of status, the report of the Oireachtas Joint Committee on Marital Breakdown and many other studies. This has resulted in a comprehensive overview of family law, which explains the many areas tackled in the Bill. Chiefly, as was stated last week, it allows the courts to make financial, property and other ancillary orders following legal separations and foreign divorces.

There is a most sensible provision for preliminary type orders which will allow the court to make barring, protection and custody orders, etc., to resolve a difficult family situation before going on to decide on separation or other proceedings. Likewise, the court can make [1897] interim orders on maintenance or lump sum payments pending the determination of an application for judicial separation. This is much needed, particularly the new provision for lump sum payments as often one spouse is left to pay college fees, electricity bills and mortgage payments while waiting on the court to determine the main case, the family situation. This caused great fear and hardship in the past and I am pleased the problem is addressed in the Bill. It avoids obvious loopholes by allowing these lump sums to be paid by instalments and to be secured.

The Bill goes on to give important new powers to the courts to order attachment of earnings at the same time as maintenance is ordered to be paid. As a solicitor I know of many women who are crying out for such a provision. I would prefer to see a system such as exists in Manitoba in Canada — a computerised system about which some of us will have heard for monitoring maintenance payments. The accounts are monitored so that in the event that payment of maintenance is not made enforcement proceedings are immediately commenced. The debtor can be compelled to make a full financial statement and can be summonsed before the court to do so.

From experience I know that the biggest problem for the spouse depending on maintenance is not getting the original order but ensuring payments are made thereafter. It is difficult for women in such circumstances to go to court each time the husband neglects to pay. Under the Canadian system 85 per cent of orders are paid; that indicates its effectiveness. It makes sense in other ways also. If a woman receives payment promptly it will reduce the cost to the state of providing social welfare. Furthermore, it ensures that parents' honour their parental responsibilities and that is most important.

In that regard, I noticed when the Minister for Finance, Deputy Quinn, announced the budget he removed the provision in relation to deserted wives. I gather from what the Minister said in [1898] this House last week the term was being taken out in order that there would be no discrimination between the various categories of people in situations of marital breakdown. It is a most sensible provision. The term “desertion” inferred that a dependent woman could be deserted by her husband leaving the way open for the State to support her instead. It seemed to accept the notion that a spouse and parent could simply walk out and abandon their responsibilities. I am glad to see that term removed from our social welfare code.

I also note that the Minister for Social Welfare is making the necessary provisions to ensure those affected by any changes in family law will not be discriminated against because of the category they fall into. I always thought this was needed and I am happy to see it happening now.

I would favour a more proactive system for maintenance collection. However, I recognise that the Minister has made several important improvements in this area in previous legislation and facilitates the dependent spouses in many ways. The provisions in this Bill for attachment of earnings will greatly improve the situation of many women as has been shown by the study undertaken by the Combat Poverty Agency.

However, I am still constantly amazed at the level and amount of awards being given for maintenance. I had a lady in court recently who was awarded the sum of £10 a week based on the information which the judge received which would not, I believe, have been the true picture. Sadly, the judges are often left without vital information on which to base awards. An award of £10 per week is an insult to the woman if the system considers that she can bring up a child on £10 per week. It highlights the problem that exists when a spouse is not a PAYE worker.

The greater powers in this Bill to make attachment orders are very helpful but they do not apply to the self-employed and those working in the black economy. In some cases it pays somebody to leave secure employment [1899] and operate in the black economy and avoid family responsibilities. I ask the Minister to consider providing a legal right to information about income and assets so that a spouse can at least ascertain the real position from employers, financial institutions, etc. This is badly needed to allow the dependent spouses to gain their entitlement and to provide for a fair division of income. This was recommended by the report of the Second Commission on the Status of Women and anything the Minister can do in this regard would be helpful.

While I am pleased to see that the Bill addresses the issue of insurance policies and pensions, can the Minister clarify if judges can now make orders in relation to a spouse's investments? There is some indirect reference to it but it is an area where the property, asset owning spouse may attempt to avoid maintenance orders by pleading poverty. The court could not touch such investments. Perhaps the Minister might answer that query.

Some practical provisions have been made in this Bill in relation to life assurance and pensions; it has been dealt with extremely well. Obviously much work was put into this by the Minister and his Department talking to insurance companies and pension bodies to ascertain what exactly would be needed to deal with this matter effectively and efficiently, and the Bill certainly achieves that. It allows for a variety of remedies where the benefit of a life policy may be assigned in whole or in part depending on the circumstances. Pensions may be split; I notice a provision for earmarking pension rights where they are not split. That has been comprehensively thought out and it is one of the better parts of the Bill and is welcome.

As regards the age of marriage, the Bill repeals the 1972 Act and the minimum age of marriage has increased from 16 to 18 years of age. That is an important provision which is already happening, not because of the way people view marriage but because the way [1900] number of people living together has increased dramatically over the past number of years. Marriage is a decision which people take seriously and it should be seen to be so. It is extremely young to marry at 16 years of age. I have learned at lot since I was 16 years of age and I would not like to be in a situation now where I would see such a decision as wrong. It is practical to ensure that the serious act of marriage is reflected in our law. Even 18 years of age is young when one considers the responsibilities one is taking on. It is, however, a sensible change in the law.

The provision whereby three months' notice must be given is also important. Many of my friends are engaged to be married and they have told me about the pre-marriage courses they are attending. I find that interesting. I welcome the fact that people do not rush into marriage and that shotgun marriages are gone. Many couples need the opportunity to sit down and consider what they are getting into. It is not a bad thing for the three months period to be put on a statutory basis.

A matter which concerns me is referred to in the section relating to property adjustment orders. I trust the documentation required by the Land Registry and the Registry of Deeds will be clarified with them before the legislation comes into effect. In the past these institutions have insisted on marriage declarations, signatures of spouses to deeds, etc., even in separation cases. This has proved difficult in the past where one spouse may not want to cooperate, which is often the case. It is important to ensure the Land Registry and the Registry of Deeds are given clear instructions as to what documentation they should seek where property ownership is being transferred pursuant to these new orders. That is a practical suggestion on my part.

I welcome the fact that more family law cases are now being heard in the Circuit Court thus saving expense. That is a sensible provision. I know the Minister's work on legal aid, which we will deal with in the House tomorrow, will [1901] make it possible for those in need to obtain their rights without incurring financial hardship. That too is welcome. This Bill tidies up many loose areas in family law and fills many gaps. It paves the way for a divorce referendum which will only have to deal with the right to remarry. The Bill removes any remaining flaws which could be used to engender fear in a referendum debate.

Will judges be retrained to deal with the enormous changes in family law? The example of awarding £10 per week for maintenance seems to indicate that many judges are out of touch with the real world and the practicalities of rearing children. It may also be useful to consider how our family law cases are heard. As matters stand, cases are heard in camera, either before or after hearings of criminal and civil cases. Therefore, the married couple have the advantage of a less formal atmosphere in which to conduct their business. However, with that advantage comes the fact that the press are excluded from such cases. While the confidentiality of the parties concerned must be protected — this is paramount — the in camera system means that there is no comprehensive reporting of family law cases in the local or national media. This can result in the not seen, not heard syndrome where the public at large are not made aware of problems in their society in a way that they might seek to address them. Furthermore, it means that judges, researchers, legislators and others lose vital information about what is happening at ground level. It also has the effect that family law cases are not seen as important in the eyes of the public.

I raise this issue because it is important to develop a coherent approach to the area it covers so that when the number of family law cases increase, judgments would not vary as much in cases of similar circumstances simply because one judge may be more sympathetic to various problems than others or vice versa. There is, therefore, a need to examine the development of family law. In this respect, it may again [1902] be necessary to look at the in camera rule.

While I am aware that this would be a matter for the Minister for Justice, we will have to look at, and seek changes in, our court administration system to allow it to cope with the increase in family law cases; I know this was mentioned in the previous debate. These cases are often treated as the leftovers, to be dealt with when the real criminal and civil cases have been done so that people including judges, are tired at that stage. Justice is not best served in those circumstances. We have to examine the way family law cases are treated. Strictly speaking, I know it is a matter for the Minister for Justice, but I hope that the Minister for Equality and Law Reform Deputy Taylor, will work with the Minister on that issue.

I again draw the House's attention to the greater need for mediation services. I know the Minister did provide much greater funding for them, but it is no only a question of money. The legal profession have an important role to play here. Under existing law, they are obliged to inform clients of the mediation services available, but I question how much emphasis is given to this area and the amount of information available on it. It is not the fault of the legal profession, of which I am a member. The legal profession knows little about the role mediation plays in marital breakdown. The general public are also unaware of the services available. Yet the approach taken through mediation does help a separating couple to come to terms with what is hap pening. Instead of scoring points of each other, it helps them to seek the best resolution to their problems while considering the needs of their children. This area deserves greater recognition by the public and the profession involved.

Is it possible to fund the setting up of an independent State mediation service? A comprehensive family law system should have a mediation component in it. Perhaps the Minister has dea [1903] with that idea in another way and if so, I would like to hear about it.

I welcome this Bill. It fills many gaps in a practical way. I have named some of them but did not go into any great detail. The tax provisions are another example where any of the property orders are facilitated by virtue of the fact that tax exemptions exist to facilitate them. The Bill will no doubt be of great assistance to those who find themselves in the unhappy situation of a marriage breakdown. It is a practical measure in dealing with the realities of life and I very much welcome it.

Mr. Farrell: Information on Willie Farrell  Zoom on Willie Farrell  Ba mhaith liom fáilte a chur roimh an Aire go dtí an Teach seo.

The Minister is dealing with a very difficult problem, particularly after the Supreme Court decision on the old family law Bill. The emphasis we place and the number of laws we pass on the break up of the family amazes me. We do not devote the same amount of research and work into keeping the family together. Only a small percentage of families break up, less than 10 per cent; some 85 to 90 per cent still retain good old moral values. When I see genealogical societies in every county compiling records to help the many Americans looking for their roots, I sometimes wonder if society will continue as we intend and if people will be able to find their roots in another 100 years. This is rather sad. It is a pity we do not have a proper survey to see why marriages break down. My opinion is they break down because of the pressure of the society in which we live. We have become very selfish. Everybody talks about “my rights” but in marriage we should talk about “our rights”.

Let us look back over the last 20 years. In 1974 I could come to Dublin, park my car in O'Connell Street and go window shopping at night and nobody would have interfered with my car. I could visit my friend in Ballymun, park my car at the high rise flats, go up the lift and stay there for a day or two and my car would have been perfectly safe.

[1904] From their balconies women watched their children play below. In the last 20 years we have put more money into health, education and social welfare to improve the lives of our people. What is the end result but more broken marriages and more crime. Some 20 years ago old people were admired and helped on to buses. Today they are mugged, beaten up and robbed for a few paltry pounds. What has come over our society in these short 20 years?

Since 1974 we have heard all about this liberalism and freedom but what has it brought us? Today we do not have the freedom we had 20 years ago. One cannot have a pint and drive home; one cannot park one's car where one likes; one cannot drive at any speed one likes. One cannot build a house where one likes. A farmer cannot sell his cattle on his farm. We are squeezed with one Act after another. People have no freedom today. I could go on about all the ways our freedom has been curtailed over the last 20 years. It is time some Minister started looking back to see what in God's name went wrong.

If we did a survey on the break down of marriages we would find that in some cases more money can be obtained if a person is a deserted wife and her husband is claiming social welfare for himself. By not having the balance in favour of marriage we are going against traditional values. We talk so much about traditional values and community effort but the heart of the community is the family. We should load the balance in favour of the family. That is one of the causes of family breakdown. The second thing that causes families to break up is financial pressure. The expenses incurred when children start school should be exempt from tax because they are part of the household budget. Children's allowances are negligible and now we are going to give parents tax exemptions for breaking up. Why not give them tax exemptions to stay together?

In 1974 many women did not have to work, but now women want to work and they are giving a great service to society. [1905] Some have highly qualified jobs as teachers, nurses and doctors and we need them, but many women who would dearly love to stay at home are working today because of necessity, to pay the mortgage. We should give the woman in the home more recognition and a better deal, but in modern society we are trying to make it a great virtue to be out at work. Staying at home to rear the family seems to be a menial task whereas it is the most rewarding task one could do.

In 1960 I built a house when I was thinking about getting married. I had 33 happy years of marriage until God decided otherwise and I have been happily remarried for a year and a half. I can never understand why marriages break down, but they do. In 1960, I got a grant of £570 to build my house which cost £1,000. I got a contractor to do some of the work and I did some myself. I was a two-handed man then and well able to work. Since a person could build a house for £1,500 in 1960, I got more than one-third of the price of the house in grants. Today a house costs a minimum of £30,000 but the grant is only £2,000. Surely that is not helping marriage. Why can we not provide higher grants to encourage people to build family homes?

I see a danger with this type of Bill of which I am sure the Minister will take cognisance. In our society we have many silver tongued ladies and gentlemen. At a certain age men and women who have worked hard and may have a good farm or business, get talked into getting married, and a year later——

Mrs. Taylor-Quinn: Information on Madeleine Taylor-Quinn  Zoom on Madeleine Taylor-Quinn  It's a disgrace, Senator, the poor creatures.

Mr. Farrell: Information on Willie Farrell  Zoom on Willie Farrell  Yes, it happens and we know it happens. We should ensure that the spouse going into the farm only gets out what they put in, but we must guard against some poor man in his late 60s who gets to thinking that way, being codded, or a businesswoman who inherits a place being taken advantage [1906] of by some silver tongued gentleman, not for love but——

Ms Gallagher: Information on Ann Gallagher  Zoom on Ann Gallagher  Did that happen to the Senator?

Mr. Farrell: Information on Willie Farrell  Zoom on Willie Farrell  I remember a very interesting case involving a woman in Sligo. It did not go as far as marriage but it went very near it. In the court she was asked if she had told this man that she loved him and that she would marry him. She replied, “I said I would marry him and I would learn to respect him but I never said I'd love him.” In this case, pressure was exerted but luckily it did not come off. This is the type of danger you have to guard against in this type of law.

To get back to the more serious parts of the Bill, we now know that maintenance is well nigh impossible to obtain. Maintenance is granted regularly in courts, generally against the man who is probably on social welfare and cannot pay it. Alternatively he may go to England and leave this jurisdiction. What do we do in that case? Is there a way of incorporating this into EU law so that, regardless of what country he is in, we can take the necessary steps because so far that is not happening?

Ms Gallagher: Information on Ann Gallagher  Zoom on Ann Gallagher  The Minister has already seen to that.

Mr. Farrell: Information on Willie Farrell  Zoom on Willie Farrell  I hope he will. We hear of all the things we are going to do but, in reality, it does not work.

Ms Gallagher: Information on Ann Gallagher  Zoom on Ann Gallagher  He has already done it; the Senator can rest assured.

Mr. Farrell: Information on Willie Farrell  Zoom on Willie Farrell  It will always be hard to get maintenance from someone who does not want to pay it. If someone is on social welfare it should be deducted from his benefit. The maintenance payment should be his first priority. We must have a system where, if a woman is awarded maintenance, she gets it and it is not just a meaningless figure in a book.

[1907] A recent survey showed that children in unhappy homes were much happier than those from broken marriages and divorce. We must take special care of children. We talk about selling the home and dividing the proceeds between the married couple, but that is not enough. Who is going to take care of the children? It is good for them to go with one parent for a while but what happens when that parent remarries and the other family has children? Between the jigs and the reels, the two families may not agree and some of the children may not be wanted by one spouse. Those are the hard facts. These things happen and I do not know how we propose to deal with them. It is a fact that, unfortunately, divorce will come but we will not have the solid families we had in the past. I really do not know how we are going to provide for those children and I do not see anything in the Bill that is cast iron and will ensure that they are catered for.

Maybe it is time to consider that, when a couple get married and have a family if the woman would like to stay at home with her family she should be legally entitled to five years' leave of absence from work. I believe many women would avail of that and socially it would be a good thing because we now have all the problems of dragging children out in the morning to crêches. At the end of five years women would have the right to get back their jobs.

Many families need money most when their children go to secondary school or to third level education and that is the time women really need to be back at work. There should be a system where those people could get back into the workforce, perhaps have a month's refresher course before they go back to work. If something like this were done there would be far less need for the Family Law Bill we are discussing today.

I cannot stress sufficiently the need to maintain marriage. Most of us came from good, traditional family homes and we would like to see today's children [1908] benefiting in the same way. I believe that more than 90 per cent of families are still in good, solid relationships and provide good stable homes. I sometimes think we now have better houses than good homes while in the past we had bad houses but good homes. Interests have changed to some degree however. In England, I believe the divorce or marriage break-up figure is nearly 50 per cent and in America the figure is 70 per cent. It would be sad if Ireland went down the road and if, in 20 or 25 years time, the number of solid, traditional family homes was as low as 20 per cent or 25 per cent. There is a greater need than ever before to put more resources into the family home, into keeping families together and carrying out research as to why families break up. There must be a reason.

As I said at the outset, when we began with education for all we were told that if everyone was better educated it would create enterprise and employment, we would have a better country, better health boards, better health services, better community care services, people would not be going to hospitals, they would not be sick, they would be cared for etc., but it has gone the other way. We have bigger hospitals, longer waiting lists and more sick people. Social welfare payments have been increased out of all proportion during that time. The result is that we have bigger housing estates, better houses, bigger green spaces, bigger open spaces, out near Dublin Airport there are acres of playing fields but there are no children playing only a few horses grazing. These things have been done to improve people's way of life but what has happened? We have more drugs, more drink and all kinds of abuse, in other words, we have a very disruptive society. Some Minister — no one would be better suited than the Minister here today — will have to research why our society is moving in this direction. Why are we legislating to help those whose marriages break up rather than helping those who stay together? Why is there not more research into keeping families [1909] together? Why can we not go back to what we had 20 years ago when a person could get a grant of one-third of the price of a house to build a family home? As I said today one can get only a £2,000 grant when the cheapest house costs £30,000, a very small percentage. We have gone money mad but we have gone wrong in other ways too. We must help people whose marriages are breaking up. I welcome the Minister's efforts to alleviate that problem. It is not an easy problem. I would like to see more work and effort put into trying to retain the traditional family.

Mrs. Taylor-Quinn: Information on Madeleine Taylor-Quinn  Zoom on Madeleine Taylor-Quinn  It is very difficult to follow Senator Farrell who is always entertaining. I was amused by some of the things he had to say. I am delighted Senator Farrell had such a successful marriage and has had a successful second marriage for the past year and a half. If all the people of Ireland were as fortunate as Senator Farrell we would not need Minister Taylor here today with this legislation.

Minister for Equality and Law Reform (Mr. Taylor): Information on Mervyn Taylor  Zoom on Mervyn Taylor  I would be happily redundant.

Mrs. Taylor-Quinn: Information on Madeleine Taylor-Quinn  Zoom on Madeleine Taylor-Quinn  He would be a happy, redundant gentleman and not Minister for Equality and Law Reform. Fortunately, the fact that he is here demonstrates that the ideal Ireland Senator Farrell has just portrayed is not reality. The good old times when everything in the garden seemed to be rosy are no longer with us. I would suggest that part of that great rosiness in the garden of long ago was due to the fact that the women of Ireland felt their role was very specific, namely, to remain in the home and care for their families. Thankfully the women of Ireland over the past 25 to 30 years have realised that they — as individuals — have other specific roles to contribute to Irish society. That is very good for Irish society and it is good for the individual to reach her full potential. Senator Farrell has outlined the great family tradition [1910] and the great traditions of providing care and support in the home. That is all very true. We still have many cases of this in Ireland where many fine women provide carers' attention without any recognition from the State or their families for the tremendous work they do.

It is time there was more serious recognition of the major contribution these women are making and have made in the past. The reality is that the men of Ireland — and I do not mean this in a disparaging way — never felt it was their responsibility to be part of the caring system or to provide the carer facility that the women provided. It is something which was taken for granted. Many daughters, daughters-in-law and many female relatives find themselves looking after elderly relatives without any recognition, thanks or recompense. We should recognise that fact and not take it for granted as Senator Farrell may have been stating here today. We are living in changing times. We have a changing society and we have to adapt and the fact the Minister is here is evidence of that.

In effect this Bill is trying to address some of the difficulties confronting our society and attempting, in a very caring and understanding way, to resolve these issues in a civilised way and make it possible to work out difficulties in a more manageable way than has been the case in the past. This Bill is a very welcome Bill. I am particularly pleased it is before the House because it addresses many issues which have arisen over the years. Many recommendations made by the Oireachtas Committee on marriage breakdown and in various Law Commission reports are addressed in this Bill.

I am delighted the Minister has come to this House with this Bill which addresses some issues in great detail. I refer in particular to area of pensions. That has been a particularly difficult issue for the law and for the courts to address in separation cases in the past. Very specific difficulties have arisen in that area. In this Bill the Minister is [1911] attempting to address that issue. I recognise that it is not an easy issue to deal with and what the Minister is doing in the Bill is what the feels is best in the circumstances. Nevertheless, this is, I hope, a precursor to a referendum on divorce. With this legislation in place the people and the electorate of Ireland will realise that issues that were of concern in the previous referendum on divorce in the mid-1980s will have been addressed prior to the divorce referendum taking place.

I sat on the marriage breakdown committee between 1983 and 1985 and we made a number of recommendations in our report. One of the recommendations was the increase in the age for marriage from 16 to 18. It was the very strong view of the committee at that time that the marriage age would be increased to 18 years of age. It is appropriate and right that the Minister is introducing that section in this Bill.

Equally, in that report we recommended that special consideration be given to the position of itinerants because they have a very different culture and tradition. Their pattern of marriage is much younger than the settled community. I hope that due cognisance will be taken of that issue. I know that there is a specific provision in the Bill for application to marry at the age of 16. It might be helpful if the Minister was in a position to introduce an amendment on Committee Stage dealing with the itinerant element because there were specific recommendations in the marriage breakdown report on that issue.

There is just one section that I find curious and rather interesting, that is, the section on the notification of the intention to marry. I would like to know the reason behind that. While people may know each other for a considerable length of time, they often, for a variety of reasons, may decide fairly quickly to get married. The fact that they decide to actually go through a ceremony fairly quickly does not mean that the mens rea has not been geared towards marriage [1912] at some date in the future. That issue should be looked at more closely. I do not see any great need or reason for it.

I come from County Clare where we have an international airport with Aeroflot flights to Florida. It is becoming a feature of those flights that people board the plane, get married in Florida and in various states of the United States, have their honeymoon over there and come back. They are just going to fly out of the country, get married and come back. I am not sure this is a judicious approach to adopt in relation to notification of intention to marry. I ask the Minister to elaborate further on the reason behind that section.

The Minister being a warm, full-blooded man will understand how one could get taken over with a certain level of emotion at any given time and decide: “Right, we are going to go off and get married. We are going to head for Dublin and get a priest friend to marry us and that is going to be it.”

Mr. Taylor: Information on Mervyn Taylor  Zoom on Mervyn Taylor  What a mistake that might be.

Mrs. Taylor-Quinn: Information on Madeleine Taylor-Quinn  Zoom on Madeleine Taylor-Quinn  Could the Minister justify coming between a couple who would take that decision with the three months notification of marriage?

Mr. Taylor: Information on Mervyn Taylor  Zoom on Mervyn Taylor  Absolutely.

Mrs. Taylor-Quinn: Information on Madeleine Taylor-Quinn  Zoom on Madeleine Taylor-Quinn  It is something on which he should reflect. That is all I will say on that section.

I would like to address the situation in relation to family courts and the judges who adjudicate in family matters. It must be put on record that a variety of judges adjudicate on family problems and a variety of attitudes and approaches are adopted by these judges. There is an urgent need to take the lot aside and give them a good orientation course, direction or some sort of training on how to deal with the issue.

I have a number of friends in legal practice across the country. Some of the stories I have been told about attitudes [1913] expounded by judges in courts in camera are absolutely confounding and, quite frankly, unacceptable. I dread to think about the attitude adopted by some of the judges. It is so traditional and conservative and, I will go so far as to say, in some instances so anti-woman that it deserves close examination.

In appointing judges in the family law area in the future close scrutiny will have to be given to the various applicants before they are appointed. Those who are currently sitting and adjudicating need to be retrained. I believe that some of them are unsuited to adjudicate on family law matters. I ask the Minister to take that up with his colleague, the Minister for Justice, because it is a serious issue. We can legislate all we like here but when it comes into the courts for adjudication by a judge, we are into a very different ball game and the persons concerned are left totally to the whim of the judge on the day. That is unacceptable.

I do not want to go into too much detail on nullity. There is a ludicrous situation in this country where we have Church and State nullity. The majority of the public are not aware of the two separate nullities until they are in the situation of trying to resolve their problems. It appears that it is now almost easier to secure a Roman Catholic Church decree of nullity than it is to secure a State nullity. That is extremely unfortunate. When one addresses the question of nullity and the yardsticks that decide nullity, there is another area to be examined. One questions the fallout from all of that. That is why it is so important that rather than going through a preamble on that issue, the sooner a divorce referendum is put and passed to resolve that difficulty the better.

This is all I wish to say on the Bill at this stage. It is a very good Bill. It incorporates and includes many issues which have been outstanding in relation to family law for a considerable length of time. I commend the Minister for the fine work he is doing in this area of family law reform. I wish him every success [1914] and hope he will be before us again shortly with a Bill to introduce a constitutional referendum on the issue at some date in the future. I hope this Bill gets clear passage through the House.

Ms Honan: Information on Cathy Honan  Zoom on Cathy Honan  I too welcome the Minister to the House and on behalf of the Progressive Democrats I welcome this Bill. I congratulate the Minister for bringing it forward. The Bill, as Senators have outlined, is extensive and stretches beyond the framework currently in place. It involves model provisions for any future divorce legislation.

The Bill deals with many difficulties that have arisen in relation to nullity, foreign divorces and legal separations that we already have in this country. It gives new and extended powers to the courts for the support of dependent spouses and children. It deals with the areas of barring, protection and custody orders, maintenance of spouses and children and the redistribution of property for the benefit of spouse and children. It also deals very comprehensively with pensions, life assurance policies and property and succession rights. It is a very welcome and detailed Bill.

We are discussing this Bill under the shadow of the Supreme Court challenge to the Judicial Separation and Family Law Reform Act, 1989, on which this Bill is largely based and also in the light of the declared unconstitutionality of the Matrimonial Home Bill. I read last week — the Minister may be able to elaborate on this — that the Attorney General is in some way moving forward the Supreme Court hearing of the challenge to the Judicial Separation and Family Law Reform Act. I read something about that in the papers last week and was wondering if that would speed up the hearing so we will have a decision on this quickly.

This issue is very important in light of the impending divorce referendum. The Matrimonial Home Bill, dealing with joint ownership of the family home, had the support of all the parties in this [1915] House and the other House, and the Minister himself greatly supported the principle it tried to obtain. I and many of my colleagues are disappointed that the Government is not pursuing alternative methods of trying to ensure that the principle we all supported in that Bill could be given legal status.

Senator Gallagher spoke about the decision of the Supreme Court. The courts have told us when dealing with problems in this area that social policy is a matter for the Oireachtas. The Minister introduced legislation which was found to be unconstitutional on an issue which none of us anticipated. The concern was that it would have been found to be unconstitutional on foot of property rights but the argument put forward and accepted by the Supreme Court was that it interfered too much in the family.

I am aware of the Minister's own sentiments in relation to this and of the sincerity of his belief in the objectives of the Bill. I wonder if the Minister is getting support in Cabinet for the introduction of alternative legislation to ensure that what we wanted in the Matrimonial Home Bill would eventually come to pass.

The explanatory memorandum to this Bill states, when dealing with the implications for women, that:

The provisions of the Bill apply equally to men and women. However, the extended power of the courts to deal with the financial consequences of marital breakdown are expected to be of particular benefit to women.

When we discussed the Matrimonial Home Bill we also believed that it would be of particular benefit to women. We were addressing in the main a category of women who did not work outside the home. In previous cases before the courts, particularly L. v. L., the court decided that because the woman did not contribute financially to the purchase of the home or the repayment of the mortgage she did not have a joint entitlement to the family home. We were specifically trying to address [1916] the position of women who decided to stay in the home.

Our Constitution, on the one hand, talks about the benefits of women in the home and how they contribute to the common good, yet was found to be wanting in relation to these women. The onus is on us to try to change that. We seem to be saying to women that we did our bit and got so far but it did not work out. We are saying that we are very sorry about that but they have to go to the end of the queue again. I do not think this is acceptable.

Women in the main are not very demanding for things for themselves. They have put family interests before their own interests down through the years. That in a sense contributed to the society Senator Farrell talked about. It was because women were prepared to sacrifice their own needs and their own position in society and decided to do what society demanded of them without objection that they were ignored for a long time. Times have changed and I welcome the changes. Society has to address these issues. We have to look at a situation where women are prepared to stay in the home and we have to be seen, as a society, to support them.

Senator Farrell also said that we make a virtue of the fact that women go out to work. I deny that. All women should have a choice to do what they want and the choice they make is the important issue. They should be free to make those choices. If women believe that by making a choice to stay in the home they are jeopardising their own financial independence or will become dependent on a male, they will decide that they do not want to do so. It is because of financial dependency that they decide not do that.

If we decide as a society that they should have a choice then we should enable them to make that choice with the freedom to know they are not financially dependent. The principle of joint ownership of the family home went a long way towards achieving that and it was a great disappointment to me that it was found to be unconstitutional and [1917] that this was readily accepted by the Government. I am not saying that the Minister readily accepted it, but it is an important issue.

We talked about equality in the programme for Government. Women were led to believe that some concessions would be made in the budget this year in relation to child care and that there would be some tax relief in that area. It was ignored again. The brunt of child care and care of the elderly is borne by women. Just because women have done it for so long without looking for anything in return, when they ask for something, they are almost ignored. It is as if all of these issues are outside the hard economic areas of life in this country. Many of the men who control positions of power in this country view them in this way and therefore, they are not looked after. That is very wrong.

I believe it is my duty as a female Member of this House to raise these issues again and again and to let people in positions of power know that we are not going to be content to let it pass and that these issues are important to us. They are very important to society and should be recognised as such. They are issues that are very pro-family, which all of us would like to be.

I accept what the Minister is doing. He is dealing with reality in this country and I welcome what he is doing. The reality makes necessary the introduction of measures such as those he is introducing here today. We would all like it if we did not need to introduce these measures, but unfortunately marital breakdown exists. There are considerations such as maintenance in all of this which have to be dealt with and I congratulate the Minister for the comprehensive way in which he is dealing with them here today.

I know the Minister's heart is in the right place and he knows that he has the support of everybody here. He has managed to bring forward much legislation while in office and I know he will continue to do that. Tomorrow we will have further legislation from his area. I would like to help the Minister and support [1918] what he wants to do within the Cabinet. I want him to know that he has our support and we will continue to raise these issues and keep them before the Government's mind.

There may be a feeling abroad that we are only interested in marriage when it breaks down, but that is wrong. Most people accept that a stable marriage is what should be aimed for, but unfortunately marriages break down and we have to deal with that. We should offer support to stable marriages. I welcome the extension of the mediation services, free legal aid and such other services as the Minister has introduced. Much more funding is required in these areas.

When separation cases get to court it is a very adversarial system and is almost like a battle between the two spouses. We must be concerned because unfortunately children can be the innocent victims and are left out in the cold. The last divorce referendum failed because people did not believe it addressed the financial implications of divorce.

At this stage we accept that by the time the referendum is held all of these matters will be dealt with and the only issue will be the right to remarry. However the psychological and mental effects on children of marital breakdown and all the legal arrangements need to be looked at and it is a most important area.

How we support the family is affected by our attitude to women in society. Women have supported the family very well and they have been doing it on their own. They have not received much support from the State. Our attitude to women and how we look after them reflects on our attitude to the family within our society. It is important to look at women's position in society and at what we are doing to maintain such positions and to help them to make the choices they want.

I agree with what Senator Gallagher said about family law cases being held in camera. I remember having discussions with a friend, who is a judge, about what took place in family courts. Many of us [1919] would like to believe that we live in a world that is different to reality. The names of people involved cannot be published, but it would be worthwhile if details of the cases were published because this would create a general awareness about what we should do to protect the family and to ensure that it stays together. It would also expose us to the reasons families experience problems which cause marital breakdown and it would mean that we are not looking at something when it is too late to do anything about it and maybe we would change our attitudes to the funds allocated to the various services which support the family.

I welcome the increase in the age for marriage from 16 to 18 years of age. I have a 17 year old son and it is astounding to think that legally he would be able to get married. I am sure he does not consider himself a child, but I do. It is difficult to make decisions at that age which are supposed to be for life. I do not think anyone of 16 years of age is in a position to make such a life time commitment.

I agree with the three months notice needed for marriage. In the past there was a tendency to rush young pregnant girls into marriage. The church and families thought this solved the problem when, in fact, it was the worst decision for the couple. It is right, particularly for young people, to have a period to consider what they are doing. In this country one needs a licence to drive a car and one must be 18 years of age to vote, but it is easy to make a commitment to marriage which is supposed to be for life. I congratulate the Minister for introducing these provisions.

I welcome the provisions which strengthen the law on maintenance. Since this Bill will probably affect women in particular, access to legal advice is important. If a woman does not have money, she does not have equal access to the law and to the courts and without proper provisions, the earning spouse will have an advantage. I welcome what the Minister has done in [1920] relation to legal aid and I welcome the Bill he will introduce tomorrow. We must ensure that both people have equal access to legal advice otherwise, the provisions of the Bill will not be fair.

I welcome the extension of powers to the Circuit and District Courts. However, are they properly equipped to deal with this extended jurisdiction? Many courts lack the proper facilities. In order for justice to operate effectively, we need more court staff and judges, especially women judges. The Government appointed Ms Justice Catherine McGuiness to the Circuit Court and I welcomed that at the time. She was the first woman to be appointed. This is an indication of the poor representation of women in important situations, as Senator Taylor-Quinn outlined. We need to train judges to deal with such situations. Many judges in this country are far removed from the reality of marital breakdown and from the lives of women and children in these situations. They do not experience the difficulties of financial dependency which many women experience. It would help if more women judges were appointed and if present judges were retrained. We require better facilities and a proper civil legal aid scheme.

Despite these few shortcomings, this is a much needed Bill which I support.

Mr. O'Kennedy: Information on Michael O'Kennedy  Zoom on Michael O'Kennedy  This Bill enables us to look at the issues which the Minister wants to address in a coherent and honest manner and to see if the Bill is a comprehensive and effective way of achieving harmony, justice and good relations in family law. It is self-evident that it is not a family law Bill but a family breakdown Bill. I do not want to criticise it for that reason alone, but the Title having regard to all the main provisions in the Bill, is inappropriate. As far as I can see, there are only two or three provisions in the Bill which support the family as distinct from provisions which should arise when the family breaks down. When we address this issue, we should be clear in our [1921] minds as to whether this is a family law Bill or a family breakdown Bill. I am not suggesting that the latter term implies that what the Minister is proposing encourages family breakdown, but almost every detail in this Bill is geared to coping with the consequences of family breakdown. However, there are a few exceptions which I am glad to note.

I welcome the Minister's statement about the need to safeguard and to protect the institution of marriage because that has been part of our laws and our society for years, from the old Judaeo-Christian concept of the family. It is the basis for stability in our society and it is in our Constitution. It is one of the fundamental priorities of the Bill, but where is the provision to protect the family under law given that the focus these days is on problems, rights, breakdowns, the protection of rights and the consequences of breakdowns? I will give one example where the Minister is doing something enlightened in the context of breakdown, but I must ask why we are not doing it in the context of the family? The provision in relation to pensions, for example, is an enlightened one in the context of breakdown. The dependent wife, which it is in most cases, must have the rights for which the Minister is legislating and I welcome that. However, why not take the positive step of providing the same right for a family where the unit is not breaking down? For example, why do we not, as legislators, make provision under our pension regulations, as an example to all other pension schemes, that both spouses have equal rights by definition as a family and under law to the pension rights earned by one or other? Would it not be a positive step if the provision the Minister is introducing in the event of breakdown could be used where there is no immediate or real risk of breakdown? This would ensure that degree of security — which women understandably feel they need — is there as a matter of right.

We could even make provision in pension schemes for women in existing [1922] marriages. If it emerged that the pensioner — such as a Member of the Houses of the Oireachtas — who has earned the pension through his entitlements, offended the standards we would require in vindication of the fundamental rights of women, one could provide for forfeit of pension rights in respect of the wife or, if not for forfeiture, for reduction. This would be seen as family protection. It is time we in the Oireachtas, who are meant to give an example, wrote into our regulations that our pension schemes do not attach to persons who, by virtue of Membership in either House, has “earned” the rights so to speak. As all of us, male and female, recognise that none of us could begin to serve the public need were it not for the support and constant stability provided, in this instance, by the wife in the home.

Another example in the Bill is the housing area. The rights of women must be vindicated in the event of marriage breakdown. However the old concept of family was not just a man, a woman, their children and rights in the event of breakdown — it went far beyond that. Society did not start in 1990 or 1995, although it looks to be close to breaking down at this point. What has maintained the stability of society until today is the extended family concept. The family is not only the husband and wife, it is also the grandfather and grandmother. I welcome the points made by Senator Henry in this regard. The elderly, as we can see from our experience, give a great degree of stability to family, and a great deal of affection to children and grandchildren. They give stability of a kind for which we all long and yearn but in a sense it is being ignored.

Perhaps our housing policy could be redirected positively towards supporting families. Let us consider Ballyfermot today. I knew that area 30 years ago; I visited from time to time; only the first generation had settled in Ballyfermot at that time. Many of them were vulnerable and unemployed, some of them single parents although not to the same extent as today, and there were some [1923] alcoholic husbands. The problems of Ballyfermot at that point were all too visible and some saw them as synonymous with the problems of Dublin.

It is wonderful to think that, 30 years later, Ballyfermot can be held up as an example of a cohesive community. There are problems there as there are everywhere but now the second and third generations have grown up, as they did in the village communities of which we are so proud, in the neighbourhoods in which we were lucky to grow up, and they have become an essential part of the area. The problem has now been transferred to other first generations areas, as we might call them, in Dublin.

In terms of financial commitment, no country has consistently invested as much money in local authority housing stock relative to its total economic capacity as Ireland — and I have experience of this in countries throughout Europe. Further, no city corporation has invested as much as Dublin Corporation in providing accommodation but has our social planning been enlightened? I have great respect for people involved in community work in Tallaght and for those who are vulnerable and have problems. Given its location, size and contiguity to the mountains, in any other city in Europe it would be regarded as an elite development in terms of accommodation stock and positioning. By and large, that has not been so with us.

As the generations change, the strength in that great community, the educational infrastructure, etc., will draw out what is in those people. Nonetheless, what we are conscious of now are the symptoms of breakdown. We are putting all those who are vulnerable — the single parents, the unemployed, etc. — in one area. Where is the positive thinking in terms of families, whatever definition one uses — the extended family, the conventional family or the single parent family? Where is the positive approach?

This is not a criticism of the current Government because this has been a [1924] pattern over the years. In our decisions on housing allocation and expenditure we should ensure a degree of social integration in communities. People cannot be uprooted from their heartland in the streets of this lovely historic city and sent to the perimeter to better housing accommodation but a less amenable social environment. We cannot do this anymore although we have been doing it for a long time.

We have all been privileged to see this wonderful community spirit in rural Ireland but it is a feature too of the village communities of Dublin. I was privileged to know one great village community in Dublin when I was studying for the Bar; I spent some years teaching part-time in Ringsend, or as we knew it “The Ringer” or “The Village”. If one wants to see community, one will see it there. Everyone is related one to the other, and no age distinctions. Pressures now apply there as well as everywhere else but the strength of that community is the same as in any village community — the intermingling of ages and the interdependency of family in its broadest sense. Mrs. Nolan — I remember her as Old Grandma Nolan — had a shop and her family gave great distinction to Irish football — of course we are playing football today. She was the core of Ringsend; she knew what was going on and she was looked up to and respected.

When we talk about family law, is it not time to use some of the desirable provisions in the Bill, which are there in the event of breakdown while the family unit is still in existence? The Minister has to cope with the consequences of the problems which are there. These provisions should be available for stable families as well as for families in danger of breakdown.

If I did nothing else during my period as Minister for Finance, I am happy about my decision — when the Murphy judgment was made by the Supreme Court — to have two separate tax allowances for a married couple when a wife works outside the home. I immediately saw that if one did not extend that to the working wife at home there would [1925] be active discrimination against the very person who is designated in our Constitution as being the significant bedrock in the stability of our society. I proposed to the Government that we act rather than wait for any action on the part of any group who might feel offended or any determination on the part of a court. God knows, there were financial consequences in respect of the first decision which put our budget way off key although they were also, perhaps, a consequence of some of our misplaced actions subsequently when we did not confront things we should have confronted. However, that is another day's work. We introduced the same right to a tax allowance for the working wife at home as for the working wife outside the home. What else should we do?

There is understandable pressure nowadays on all of us, and particularly on those in Government, to cope with immediate problems that arise where there are consequences of breakdown and where there is violence or wife battering. That is understandable. Is it not absolutely essential that, in addition to doing that, we should take the positive view in supporting what is already stable and secure? The Minister is responsible for law reform and I ask him to look at all the relevant areas — social welfare payments, education and the range of areas where the State is involved — in order to protect the existing family. I agree with Senator Henry; I would have been happy if all possible allowances and welfare provisions in the budget were targeted more to support the family.

I resumed practice at the Bar in the last two years. I have heard comments today, from Senator Taylor-Quinn among others, which are well based and justifiable from any reasonable observation of courts at any level in any one day. Judges by definition are not going to heal problems or, as somebody said, “solve” problems, although that depends on what we mean by “solution”. Lawyers by definition are not engaged in reconciliation. Lawyers are there to represent the interests of their [1926] clients. That is the reality and we should acknowledge it. We are living under an illusion if we think a court system can bring about some degree of reconciliation, or are we saying that that is not its function anyway? We call it “family law”. Perhaps we should call this the family breakdown Bill because that is what it is.

Since I left the Bar over five years ago, the growth area in law has been what we call family law. It is a huge area. There are many lawyers, at both levels of the profession, who are making considerable incomes — and I do not blame them for doing so — as a result of that growth. There is one fact we can state: in terms of family law there is one group of beneficiaries, the lawyers.

Ms Gallagher: Information on Ann Gallagher  Zoom on Ann Gallagher  Barristers.

Mr. O'Kennedy: Information on Michael O'Kennedy  Zoom on Michael O'Kennedy  I am being up-front and honest in saying barristers and solicitors. Who can deny it? This legislation will open up new avenues where there will be another boost to the income of lawyers, be they solicitors or barristers. Let us recognise this as the reality. We are introducing a new range of provisions in the event of breakdown. We will ensure that certain things will be done and there will be lawyers available to vindicate and protect the rights of the warring factions or conflicting spouses.

Are we looking at the inadequacy of that profession in terms of trying to make a contribution towards reconciliation? Is the legal profession really equipped to do the job at all? Senator Taylor-Quinn may rightly comment about certain judges. Unless they are sent to some happy scene, such as Carrigaholt, to see family life — although they might be under pressure there too——

Mrs. Taylor-Quinn: Information on Madeleine Taylor-Quinn  Zoom on Madeleine Taylor-Quinn  Send them to Guadaloupe.

Mr. O'Kennedy: Information on Michael O'Kennedy  Zoom on Michael O'Kennedy  We are living under an illusion if we think lawyers will solve problems. We talk about our system and [1927] our courts. Should we introduce the system that operates in the United States? Is it not evident that the courts in the United States are scenes of battle, of assertion of rights? As soon as the parties come to court, whatever the issue, it will be aggravated. Have we not seen that? Do we not know that? Are we going to have the UK system where they may be more enlightened in terms of training their judges? Are we going to say there is no confrontation there? We have confrontation: an assertion of the rights of one person against the other. Lawyers are there to do that and to protect those rights.

We always talk in terms of rights as distinct from promoting responsibility. We might as well recognise that. We should not operate under an illusion. Five years after the passage of this legislation — and the Minister, as a practising lawyer, will know this — there will be a major increase in the activities and income of lawyers in these and other areas. Perhaps that is not a bad thing. However, it is not what we, as Members of the Oireachtas who are interested in trying to provide for family law, wish to set about doing. Where marriage breakdown occurs it is necessary to have the provisions being introduced by the Minister in this legislation. I will not question them. However, I would like to see the focus on another area.

One of the purposes of this Bill is to give substantial power to the courts to deal with the financial consequences of marital breakdown in cases where a foreign decree of divorce is entitled to recognition in the State. I do not have a great difficulty with our decisions under our laws. However, what we are saying in a sense in this Bill is that in the case of a foreign decree of divorce — and there are different concepts in other countries — we will introduce the same provisions in this Bill as if the divorce were secured here. It is time to pause and look at this.

Senator Taylor-Quinn mentioned that people are engaging in quick marriages in other jurisdictions. I am not sure if [1928] that is what the Senator wished to underline, but, in addition, we all know that a number of them are going to those same jurisdictions where they obtained a marriage to achieve a divorce and we are going to underpin that practice without having any real influence ourselves on the courts and the jurisdictions where the foreign divorces are affected.

We are the representatives of the people in this jurisdiction. We are the ones who have the responsibility in terms of the norms and standards of our society. Are we going to react to the norms and standards of other societies and say that if one gets a divorce according to the legislation pertaining in America, Reno or wherever — and, God knows, it is a big business — we will make provision for the consequences? I am aware that the intention is not to discriminate against people who have been disadvantaged by that, but much more thought needs to go into a provision as broad as this, where effectively we are providing for the consequences of decisions made elsewhere, in different jurisdictions and different courts which are not based on our inheritance. Understandably, they have their laws based on their inheritance.

I recall reading a series of articles by perhaps the most eminent jurist of recent time in the UK or Ireland, Lord Chief Justice Devlin, a self-confessed agnostic. He wrote a series of treatises on the issue of the law and morality, which are in the Library. He made the point that the law in any country derives from a complex of influences — its history, culture, economic conditions and the prevailing order in politics, be it totalitarian, democratic or whatever. He then also mentions, and does so deliberately as an agnostic, the prevailing religious ethos. To illustrate the point he wrote, for example, that for consistency and stability what could be good law in Islamic society, because of the tolerance, at least, of Islam towards polygamy, would give rise to chaos in a Christian society, where the norm is monogamy as distinct from polygamy.

[1929] If we want to exclude — and we can if we wish — the prevailing religious ethos in any society, call it sectarian or something of that kind and say that it is of no effect and is no business of ours, we ignore the reality that in all the civilisations throughout the world, be they some of the most sensitive pagan civilisations of Africa, China or wherever else, the prevailing religion in the sense of ethos has a major effect, and rightly so, on the law. However, are we at the stage of enlightenment, as we think it is, in 1995 that we are going to start from today and sweep all that aside, our culture or whatever? I am not referring to Ireland specifically, but to everywhere.

On whom are we trying to catch up? If somebody shows me the society we are aspiring to emulate and say that those are the standards, there is the happiness and wellbeing, there is the justice, the court system and the family, then I would sit and listen. However, I have not heard that, and I am not referring solely to the Minister. I have not heard that from anybody. Indeed, there is the view, which I have seen again over the weekend, which is based on the proviso that if people have courage they will tackle these problems and that those who do not have courage will do other things. The implications of this — and I am thinking of a whole range of commentators in the media — is that if one is to be in any way courageous or enlightened, one must go along with what they say is the modern enlightened way. On that basis I plead guilty to being a coward, if that is what they call cowardice.

I believe the real cowardice arises when people go along with those preconceived notions, because that is what they say we should all be doing, without expressing in a reasoned and convincing way why we want to question things at this stage. I do not feel a coward, but if they wish to regard us as being cowards, that is for them, and let it be. In addition, I do not wish to proselytise, but if they wish to represent what I say as being totally and utterly unintelligent, let them be. However, any immediate [1930] superficial comment should not be the norm for any one of us who have the obligation and privilege of laying down in legislation the standards we wish to see protected and upheld in our society. We may come to this issue in more detail in subsequent discussions on other stages of legislation and referenda.

I welcome the provisions in the Bill regarding the notice of marriage, but notice of itself is only the first step. It should be bolstered by a lot more than that. It is a significant step, and a breakthrough, as is the increase in the marriage age, which I acknowledge. However, if these matters are worth such a breakthrough, we must do more. I do not want to pick out any specific grouping, but the Catholic Marriage Advisory Council is known throughout the country as providing a great service. There are probably other marriage counselling organisations also, so I am not merely speaking of the Catholic Marriage Advisory Council, nor do I wish to set it apart from others. However, I wish to see their role introduced at every possible stage into provisions in respect of the family, because by definition they are much better equipped, more committed and devoted than our lawyers, of whom I am one. I am on a pay roll; they are not.

I am aware the Minister has introduced a good element — and I am not perhaps as familiar with it as I should be — in regard to provisions for counselling and reconciliation and I encourage him in this respect. It should be seen as a focus. It could really be a monument to the Minister, or any other Minister or Government which introduced, strengthened and supplemented it. If I know a group of people in our society who are not only well intentioned and highly motivated, but who are stable, balanced and have a healthy contribution to make, it is those who are engaged in marriage counselling though all the various organisations and who give their time, concern and professionalism to it. I wish to see much more entrusted to them and to see those [1931] organisations specifically targeted in legislation of this kind.

In considering the whole area of family and family law in the broadest sense, the Minister might, if not in this Bill, look at those positive elements and begin with a definition of family. There is no such definition in the Bill. The family is addressed in the Constitution, but if we wish to be clearer in our minds, let us define it and ascertain the units we wish to help. I am not excluding single parents in this. Having done that, let us then decide what we will do as regards family law, priorities and the instruments we will use to achieve our aims.

This should then inform all of our policy through every activity of Government. For example, are we going to give special support to education? We should provide such support to the family dependency, where for one reason or another a wife either does not have work, is not able to work or chooses not to work because of what she would see as her prior responsibility to the family role at home. I do not suggest that all see it this way. We should recognise that and support and vindicate it.

Senator Honan referred to the sacrifice of women. How can anyone do other than acknowledge that? It is a question of res ipsa loquitur— let the facts speak for themselves. The self-sacrifice by women in the home has brought about the stability and happiness we have in society. There is no question about that. However, I would not see it as being a question of women as distinct from those other awful alternative creatures, the men who, by definition and disposition, are uncaring or selfish. In my view, even the most enlightened, caring male will never make the contribution to stability in society which the women in the home will.

Ms Gallagher: Information on Ann Gallagher  Zoom on Ann Gallagher  They could try.

Mr. O'Kennedy: Information on Michael O'Kennedy  Zoom on Michael O'Kennedy  They could try but by definition I do not think we can. The [1932] child relates to the mother; there is a natural link between child and mother from the very beginning. I do not want to get into a sociological analysis of this. Of course, the father must be caring, protective, present as much as possible, understanding, tolerant and sharing. However, despite all that I would make the empirical observation that the mother's role in the home will always be of much greater primary importance in the children's lives than the father's, although he has a very important role.

That pre-eminent role which women not just in Ireland but elsewhere have is irreplaceable. Why do we not recognise, assert, respect and voice it? That is not to make a criticism of those who work outside the home. However, let us recognise at the same time the fundamental, irreplaceable role of the woman at home. I sometimes query to myself if those women who, understandably, wish to find expression in work outside the home feel that they have to somehow assert their right to such an extent as to, in a sense, question the right of anyone to recognise fully the irreplaceable role of the woman who decides to stay at home. To recognise one is not to blame the other. Anyone can be a breadwinner but no one can replace the role of a mother in a home.

Ms Gallagher: Information on Ann Gallagher  Zoom on Ann Gallagher  Anyone can stay at home, too; the man can also stay at home.

Mr. O'Kennedy: Information on Michael O'Kennedy  Zoom on Michael O'Kennedy  I know that in any of the family homes of which I am aware the role of the wife and mother in the home is pre-eminently more significant than that of the husband and father. I just want to have that recognised as a fact, but that is not to criticise those women who want to work outside the home. Those women who want to work outside the home should also insist and assert, as women, that the role of the woman in the home is very special. We should be working to secure and support that role, wherever a woman chooses to exercise it.

[1933] I wish to make two or three points which are more related to legal elements than the social elements with which I have been dealing. With regard to the provisions in relation to nullity, it may surprise Members that, as a lawyer, I was engaged in a court case which went to the Supreme Court in 1973 or 1974 and achieved the first nullity decree for years — Mr. Justice Seamus Egan was leading me in the case. I think there was one precedent which we could quote to the court. The basis of the case was that the marriage was not a marriage in any sense of a civil contract, which is how we looked at it. There was such a misrepresentation on the part of the “husband” as to his “intention” for “marriage” that, in fact, there was never what is called in law a consensus ad idem, namely, the agreement of both parties to make a contract in respect of mutual recognition of what they are intending to contract on, mutual respect for what they are contracting on and total and utter disclosure of the elements of the contract.

Where that is absent, where there is misrepresentation or fraud or no real intention to contract, that will nullify any contract — building contracts and so on — and has done so and looking at marriage purely as a contract, it will also nullify a marriage. Since that case in 1974 or 1975, the law courts have been simply looking at the conduct of the parties at the time, or soon after, and finding that the conduct was such as to be inconsistent with the intention to enter into a binding civil contract, no more or less.

The courts have since then introduced a whole series of guidelines in relation to the provisions for nullity; there have been many nullity decrees since the case mentioned in which I was involved. The simple fact is that nullity as such is now known to our law in the judicial determination.

I belonged to Governments which failed to do this, so I am not making any implied criticism. The Minister is making provision here in respect of the consequences of nullity but, obviously, he [1934] cannot extend all of the provisions in this Bill to nullity. Is it not time in terms of legal reform to incorporate into our Statute law the norms, conditions and provisions under which nullity can be decreed? Is that not our role? The courts should simply be interpreting the law we pass.

It is evident that there are many so-called marriages which were never marriages. For example, one of the parties may have been married before and did not disclose that to the other party, in other words, there was cheating and falsehood, which there cannot be in any contract. People must have an intention to contract about the same things with the same purpose and the same knowledge. If a person conceals or defrauds that will vitiate any contract. It is worth looking at that as being one area where we can show that the Houses of the Oireachtas are capable of providing legislation.

I wish to underline the point made by Senator Honan about child care and care of the elderly, which must be one of the most consistent elements in any family law provision. It is not so long ago, before the Married Women Status Act, 1957, that in any separation the father's right was pre-eminent; after that time both had equal rights. Later, fortunately, we recognised that there is another right, the right of the children; they were not consulted about the breakdown. We have come on, at least, in that form of legislation.

When we are talking about rights in terms of all such legislation, it is time that we also recognise responsibilities. Who consults the children? They come into being as a consequence of the exercise of the right to get married. They are not consulted, but it is a natural consequence of the exercise of that right. Have they not an essential, fundamental and primary right in the event that two people who exercised the first right were to exercise other rights? I share the view that our society is becoming far too focused on rights and not nearly enough on responsibilities.

[1935] When I hear the question of a solution canvassed I would like to know its precise parameters. It will be a solution which will bring about the conditions that exist in societies in countries in which I have lived for six and 12 months, such as Belgium, Italy, America and Switzerland. It will be that type of solution and it is time we paused and examined what it represents. It may seem a solution to some problems we have at present, but will it be a solution which introduces the problems those societies are experiencing now? We should pause and reflect. We should look at the consequences in those societies of some of the solutions which have been discussed.

I acknowledge that I have not addressed the detail of the Bill or its precise provisions, which the Minister outlined. I have dwelt on the point that I would like much of that enlightened detail introduced, where possible, to an existing family as distinct from a family breakdown situation. I hope the Oireachtas will not at any time confine itself to legislating and providing solutions for breakdown in any order of society. If the Oireachtas does this it will be ineffective and we will find many people having recourse to rights. It is time we started to remind people of their responsibilities.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I welcome the Bill. It is clear that it is part of the process of preparation for a divorce referendum, which I very much welcome. It is important in our enthusiasm for the institution of the family that we do not lose sight of the welfare of the individuals who compose it. It has always appeared to me completely blasphemous to erect a shibboleth, entitle it marriage and bow down and worship at that shrine regardless of the fate, wellbeing and happiness of the individuals who compose that entity. This is particularly true of family law.

Over many years I have witnessed a situation where, because we have this exaggerated, sentimentalised and [1936] unrealistic attitude towards this human institution called the family, it very often militates against the wellbeing of people. One example is where a wife is being battered. Traditionally, the Garda will be called, but they will go away again, saying that they cannot intervene because it is a family matter. In such circumstances it seems perfectly clear that the institution of the family is actually inimical to human wellbeing. It is time we faced the reality of these situations.

It is also remarkable that some groups who project themselves as pro life — this assumes there is another body of people who are anti life or pro death, but I have not met them and they do not seem generally spread around the country — found themselves placed in a situation of bitter antagonism to the Stay Safe programme. This was on the basis that they alleged it constituted a threat to the family because children might be incited to become a fifth column and report incidents of sexual abuse by their parents. I found that logic quite extraordinary, the notion being that being a parent confers upon an adult the right to molest and interfere with his or, in some strange case, her offspring. I cannot accept that and if this is what the family means, the sooner the family withers away the better as far as I am concerned.

I am sorry one of my colleagues has left the House because I wanted to address one or two of his remarks. I note that he paid some attention to the role of the spouse, that is, in this case as quoted, the wife in the home supporting her husband. I do not think that should be the exclusive role of women. I know it is in the Constitution, but it is a very bad thing and the sooner it is removed the better. It was inserted without consultation with women, against the advice of women and neglecting even to entertain the views of those women, as I heard on the radio no later than this morning when somebody was talking about the 85th anniversary of the Irish Countrywomen's Association. When Mr. de Valera was projecting his views about the family in Article 41, a delegation [1937] of 15 women representing 15 major women's organisations in this country attempted to gain an interview with President de Valera to inform him that they were not flattered by being imprisoned in the home under his 1937 Constitution. Mr. de Valera refused to see them, apparently anticipating the passage of the Constitution which would confirm that the woman's position was in fact in the home.

I do not take the same view as some of my colleagues with regard to the position of women or the family. One of the reasons I wished to contribute, although I do not have a great deal to say about the technical aspects of the Bill, is that I want to sound a little warning. I was at a conference in the humanist university in Utrecht last year and I met a distinguished Belgian woman who alerted me to the fact that at a number of these conferences, which were taking place before the Cairo population conference, the Vatican's representatives were attempting to side through a charter for the family. The method being proposed was that at the end of the conference the Vatican representative would stand up and say “The charter of the family has been presented to this meeting and I assume it will be passed unanimously”. Luckily, my excellent friend was there and said “No, it is not going to be passed unanimously”. I am very glad she did so because — and this is how it relates to the Bill — the definition of the family was extremely narrow and very worrying. It was a relationship consecrated by religion between one man and one woman and entailed——

Mrs. McGennis: Information on Marian McGennis  Zoom on Marian McGennis  That is reasonable.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  It is reasonable in certain circumstances but not in others and I will explain for the Senator's education why I strongly believe this. It necessitated at least one child.

Mrs. McGennis: Information on Marian McGennis  Zoom on Marian McGennis  That would be a problem all right.

[1938]Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  That is very problematic. The reason I say one must look at the family is because the family in Ireland has traditionally been, as presented by some sources, and intensely selfish, acquisitive and exclusive unit. This was used by particular political forces in order to engender these qualities of selfishness and people were excluded from the definition of the family. It had much to do with the acquiring of power in our society.

I heard one of my colleagues talking about the pension rights of spouses and I am absolutely in favour of that. After all, why would I not be? For the last 30 or 40 years I have been paying into these pension funds for the widows, orphans and widowers of my heterosexual friends. I draw this to the Minister's attention because I am sure it will come up again. I claim to be part of a family and I claim that my relationship constitutes a family for me. I do not consider that an extravagant or absurd claim.

I remember reading in The Irish Press a number of years ago an article by Tim Pat Coogan about the great socialist from Donegal, Peadar O'Donnell, saying what great wit he had, what a wonderful man he was, how amusing and politically shrewd. He said that Peadar O'Donnell told a story about two homosexuals in Roscommon and how one of them died and Deputy Seán Doherty got the other one the widow's pension. That was regarded as a source of extreme amusement. I did not laugh quite as heartily as my sexist female friends. Oh, the monstrous and fickle regiment of women. How could they?

Mrs. McGennis: Information on Marian McGennis  Zoom on Marian McGennis  It was the person who secured the pension who was the source of the amusement.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I see; it was a low political blow against a decent former Member of this House. It is interesting to examine that story. The mechanism upon which that joke works is the assumption that gay people are so radically different in their human relationships that it [1939] would be absurd to support them in any manner when they are bereaved. I do not believe that and I do not feel it. I do not resent paying for the upkeep of other people's family institutions or organisations. However, when we talk about allowing widows and widowers to participate equally in the pension schemes of their departed spouses, I do not see any reason why if I have a relationship for 20 years which has love, nurturing, devotion and faithfulness in it, my partner should be dumped on the side of the road and laughed at for expecting a little support. I do not think it is that absurd.

I wrote reproving Tim Pat Coogan and he wrote a piece in an article saying I had absolutely no sense of humour. I have, but there are occasions when it is politic to try to conceal it, not to laugh and to look terribly offended. I am afraid I did not quite succeed here. However, I hope I exhibited some of the problems underlying the mechanism of that joke.

While I support the family and I am a member of a family — even a member of a conventional nuclear family, one generation back — I raise certain questions about our unquestioning devotion to this institution as above the welfare of the individuals who compose it. We should start with the individual. If, as was claimed monotonously this afternoon, the family is the natural unit of society, the inevitable social building block as we understand it and as the Roman Catholic Church narrowly defines it, then why cannot this wonderful natural efflorescence inevitably produced by social organisation stand on its own two feet? Why does it need to be buttressed, supported, cosseted, counselled, advised, paid for and legal aided?

I am quite happy that these supports, which are provided for in the Bill, should occur, but let nobody simultaneously tell me that the family as defined in this limited way is inevitable and natural. It is a human construct which suited people for the last 300 or [1940] 400 years, which is about as long as the family as we really understand it now has existed. It may well be in a process of change. If we believe in the spirit of humanity we must welcome and adapt to that change and reflect the reality not just of a majority of people but of everybody in society.

We should start with the individual and then look at the institutions; and if a conflict arises between the individuals who compose that institution and the institution itself, we should not regard the institution as being sacrosanct and immune to questioning. I am not trying to make a plea for the abolition of the family — that would be absurd — but as a society we must be mature enough to look at the family and to see that there may be certain circumstances in which the individuals are damaged by being locked into the institution of the family.

I hope that there will be all-party considered support for measures such as these. Although Fianna Fáil is now joining us Independents in Opposition, I hope it will be constructive. I remember the last divorce referendum——

Mrs. McGennis: Information on Marian McGennis  Zoom on Marian McGennis  The Senator should have heard my contribution last week.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  I am sure it was fine, progressive——

Mrs. McGennis: Information on Marian McGennis  Zoom on Marian McGennis  Constructive.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  ——and forward looking. A spectre raised the last time by Fianna Fáil was the notion of property — it had nothing to do with the family — and it was unscrupulously used by Fianna Fáil and certain Church interests. I urge my friends and colleagues in Fianna Fáil not to follow that disreputable course of action.

Nullity seems a complete absurdity. How can somebody live with another person of the opposite sex, produce ten children and then suddenly wake up, say, on Thursday 11 June at 9.45 a.m. and discover they were never married at all, or persuade a court or a couple of [1941] bishops to proclaim that they were never married? It seems a complete nonsense. There was a marriage, it was a real marriage and people ought to face up honestly to that; otherwise it leads them into totally absurd positions. The notion of nullity which was drawn into our civil law from ecclesiastical law is a total and absolute nonsense. Such hypocrisy brings our law into disrepute.

I recall a case some years ago in which a senior judge determined that a marriage was null and void or he found in favour of an application for nullity— I am not sure of the legal phraseology. He found that the marriage was null and void because one of the partners gave evidence that he was, had been and continued to practise as a homosexual. It struck me as curious that the same judge had held in a case which I took that the then existence of the criminal law against homosexual behaviour among consenting male adults in private was absolutely necessary to sustain the moral fibre of the State and to sustain the family against attack by driving people who would otherwise be reluctant into the institution of marriage.

That seemed to show a low view of marriage, an animal husbandry attitude towards it, as if one was driving these people in as if into a sheep dip. Although they deeply disliked the experience and would not naturally select it for themselves, they had to be coerced by the threat of the big stick of the criminal law into this institution. Yet, 18 months later the same judge, having driven the unfortunate people in at one end and forced them into marriage against their wishes, the moment they are married turns around and sees the marriage as having evaporated because of the sexuality of one of the component elements. It is another illustration of my contention that one should be sensitive primarily to the individual components of a marriage rather than to the institution. We should allow people to emerge from a broken marriage.

It is also better for the children, who are usually dragged into this. It is said [1942] that people ought to stay together for the sake of the children. It was said to me at the weekend that a gay couple who are friends of mine were staying together for the sake of the furniture.

Mrs. McGennis: Information on Marian McGennis  Zoom on Marian McGennis  Or the mortgage.

Mr. Norris: Information on David P.B. Norris  Zoom on David P.B. Norris  It was not even that; it was the furniture. When one introduces the notion of the children one really needs to understand what the welfare of children really means. I believe — and there is a lot of sociological statistics and documented evidence for this view — that for children, although it is traumatic when the parents separate, it is much better for them in the long run than being locked into a bitter, divisive and sometimes physically threatening marriage.

I ranged fairly widely on this Bill, although I said little of any immediate technical import to the discussion. I did not intend to speak on the Bill, but when I heard this paean of praise for the family unqualified by any critical examination of that institution and its elevation above the human happiness and welfare of the constituent elements, I felt I ought to make this plea, not for the destruction of the family, but for a careful, sympathetic and humane analysis of what is merely one among many, but an important human institution.

Minister for Equality and Law Reform (Mr. Taylor): Information on Mervyn Taylor  Zoom on Mervyn Taylor  It is not easy to follow Senator Norris after such an interesting oration. He certainly ranged far and wide over all aspects of people's relationship with each other in different circumstances. However, he failed to deal with one type of relationship, namely, polygamy, which bears a relationship to what he said about nullity, which has been removed from the Bill to a large extent. When talking about the apparent nonsense of people living together for many years, having children and then becoming involved in a nullity confrontation, he overlooked the possibility that one of the parties could have been married before, which [1943] would give rise to some difficulty. I do not know whether he considered that point.

I am sorry Senator O'Kennedy, who spoke at length, and Senator Farrell are not here because I would like to have said a number of things to them. Both Senators were at pains, in a mild way perhaps, to remonstrate with me that this Bill deals with cases of family breakdown whereas we should be concentrating on preserving, maintaining and doing everything we possibly can to support the family. They both dealt at considerable length, in the nicest possible way, with that theme.

Having urged me at great length to deal more with family support than family breakdown, it was interesting that Senator O'Kennedy went on to talk about the wonderful work done by the Catholic Marriage Advisory Council throughout the country and I am glad he mentioned that. He omitted to mention that in 1994 I more than doubled the money to CMAC for counselling to enable it to do its work — supporting marriages in difficulty — and that I inserted in this year's Estimate a similar amount of £1 million and an appreciable sum for family mediation also. However, when the Government fell last November and an interregnum Fianna Fáil Government took over, the party to which Senator O'Kennedy and Senator Farrell belong, the acting Minister for Equality and Law Reform — I apologise to Senator McGennis, but the truth must be told——

Mrs. McGennis: Information on Marian McGennis  Zoom on Marian McGennis  And I was so supportive of the Minister on Second Stage.

Mr. Taylor: Information on Mervyn Taylor  Zoom on Mervyn Taylor  ——came into the Department and slashed by half the Estimate which I included for counselling and mediation. Happily, on resuming office in that Department, I fully restored the original Estimate, that is, the sum for marriage counselling, which remains for this year and was adopted in the budget as the Estimate for my Department for 1995. That is an [1944] indication of the regard this Government has for the institution of marriage and an indication in practical terms of the support of this Government for the institution of marriage. Nobody should accuse it, least of all the Fianna Fáil Party after what it did to the Estimate, of being in any way short in giving support where needed to the institution of marriage.

Having said that, this Government recognises that when, tragically, marriages break down, we cannot bury our heads in the sand and pretend it has not happened. It is all very well for Senator Farrell to harp back to the circumstances which pertained 20 or 30 years ago. I remember that time well, and perhaps to a large extent he may be seeing the events of that period through rose tinted spectacles. It was not quite the rosy spectacle he paints. However, whether it was or not, we must deal with the situation as we find it, do our best to assist people and to meet the needs of the situation as it faces us now.

I thank all Senators who contributed to this interesting debate. I appreciate the welcome for the legislation and I was heartened by the response of the many Senators who contributed. I am glad to know there is broad consensus in the House on the measures contained in the Bill. I welcome Senator McGennis's contribution and I agree with most of it.

The Government is committed to a caring society and a system of laws which deal comprehensively with marriage breakdown. I believe that what is proposed in this Bill is clear evidence of the Government's commitment in that regard. I would like to deal with a number of issues which have been raised by Senators in the course of the debate. Senators McGennis and Henry welcomed the inclusion of the revisions relating to pensions. The pensions provisions in the Bill were subject to extensive and full discussion with the pension industry and the pensions board and I thank them for their help in that regard. During the course of the Bill's progress it was fine-tuned and that would not [1945] have been possible without their help. Much of that help was given on a voluntary basis from people who specialise in this complex area. As I said at the outset, discussions are ongoing with the pensions industry and I will bring forward some further amendment in this area on Committee Stage.

Provisions in the Bill to raise the age of marriage from 16 to 18 years and requiring persons intending to marry to give three months' notice were warmly received by most Senators. The notice requirement reflects the belief that marriage is an institution of the greatest importance which should not be entered into lightly. In the UK, for example, when one signs on to buy a Hoover on hire purchase, there is a cooling off period. We should not regard marriage as less important than the purchase of a Hoover. A time for reflection and consideration is necessary before marriage. A period of reflection is required. Senators will know that the question of notice of marriage was addressed in the White Paper on Marital Breakdown, which concluded that the balance of arguments favoured a minimum waiting period before marriage. The provision in the Bill is in line with the three months waiting period recommended by the Oireachtas Joint Committee on Marital Breakdown.

The referendum on divorce was referred to during the debate. The White Paper on Marital Breakdown has helped to focus attention on the various options for amendment to the Constitution and it sets out details of possible divorce legislation, including the substantial powers which the court would have to make orders in support of dependent spouses and children. The paper sought views from interested groups and individuals and the wide range of submissions received are being taken into account in the context of finalising the proposals. I can assure Senators that all aspects of divorce are being examined, not only in my Department but in the other Departments which are also involved. The Government intends to deal with these matters [1946] as comprehensively as possible in the lead up to the referendum and to face up to all the issues in a considered and responsible manner.

The definitive proposals of the Government for an amendment to the Constitution on divorce will, of course, be in the form of a Bill since a precondition of the holding of any referendum is the initiation of a Bill. It is the Government's intention to proceed with the necessary legislative framework as quickly as possible with a view to holding the referendum this year.

In the course of the debate the question was raised about the type of orders at present made by the court on property of separated spouses. Senators may be aware that in 1992 the White Paper on Marital Breakdown included statistics on the operation of the property adjustment order provisions of the 1989 Act. The general practice of the courts in applying the property provisions in the Act has been to give both spouses an equal share in the family home or the proceedings from its sale. I can confirm that the court, in making property orders relating to the sale of the family home, is still most likely to order that the net proceeds of sale be split evenly between the parties. Also where an order is made transferring legal title from one spouse to another or giving residency of the family home to one spouse — usually a mother with dependent children — to the exclusion of the other spouse, it is usually the case that a declaration is made by the court at the time of making such an order that each spouse will have beneficial ownership in the home on an equal basis.

Statistics indicate that where decrees of judicial separation are granted, court orders relating to property are made in respect of almost 75 per cent of those decrees. The orders include property transfer orders, orders for residence in the family home, property settlement orders and orders for sale of the family home. These statistics indicate the continuing importance of the property transfer provisions in the context of separation.

[1947] Senator Honan referred to the Matrimonial Home Bill. As Senators will know, I was the Minister who advanced that Bill and brought it forward and it was my wish to see it enacted into law. That Bill had laid on the stocks of previous Departments for 13 years before I brought it forward with the unanimous support of all Members of the Dáil and Seanad. It lay there abandoned and neglected by many Governments, including the Government of which Senator Honan's party was a member for three and a half years. I do not accept criticism in that regard. I regret that this Bill was found to be unconstitutional, but I have to accept that. There is little point in asking me what I intend to do about that. That is the constitutional position, but at least I tried to deal with that situation. It is right, appropriate and proper that a woman working in the home, whether it is experiencing marital breakdown or not, should, as of right, be entitled to an equal share in the family home and its contents, which is why I devoted much of my own and my Department's energy to bringing that legislation forward. Unfortunately, we were not able to achieve that position.

Having said that, I would emphasise that the Matrimonial Home Bill was applicable to situations not of marital breakdown but of marital harmony. In a marital breakdown situation, as Senators know, it is the position that all the property of the marriage, including the matrimonial home, its contents, the family business, farm, pensions, bank and building society accounts, stock on the land and other aspects of family property are on the table for division in the fairest possible manner between both spouses. That is currently the position under the Judicial Separation Act and this Bill and that will stay the position, irrespective of whether the people vote to introduce divorce. In many cases courts order the transfer of the matrimonial home — I have been involved in many such cases — in its entirety into the name of the wife, never mind only on a joint and equal basis, which I agree [1948] is more the norm. However, in some cases the courts consider it appropriate for one spouse, usually the wife, to be given the entire matrimonial home and that is done on occasions.

I refer briefly to the important new text provisions which have been included in this Bill. These measures were included in the passage of the Bill through the Dáil. The areas of the tax code to which these provisions relate are stamp duty, capital acquisitions tax, capital gains tax and probate tax. The main effect of these provisions is to extend the property tax exemptions which currently apply in financial and property dealings between married couples to those cases covered by the Bill where foreign divorces are 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, however, is that they will, in substance, be the same as those in any future divorce legislation that may apply for domestic divorce if people vote to introduce it.

Provision is being made to exempt from stamp duty the transfer of property which is the subject of an order under the Bill between spouses whose marriages have been dissolved abroad and where the decree of divorce is recognised in this State and the order provides for the transfer of property. There are already similar provisions in the law for spouses who have been separated. The effect of the Bill is also that instruments of transfer do not have to be adjudicated on by the Revenue Commissioners, thereby minimising the costs involved.

I have to refer to Senator O'Kennedy's comments on foreign divorces and orders being made consequent on that, which I found rather puzzling and strange. I do not think the Senator really understands the Bill. It is the position in Irish law at present that certain foreign decrees of divorce are recognised by the State and there are many such cases. This Bill provides that in such a circumstance a dependent [1949] spouse, or former spouse, who is resident in this State may go to our courts to seek to have a relief order made for their support and/or for the support of their children of that marriage. Is Senator O'Kennedy suggesting that we should not provide in such circumstances for a dependent spouse or children of that former marriage? I do not think the Senator fully understands what that provision of the Bill is directed towards.

It was mentioned in the course of the debate that there is little point in bringing forward legislative proposals in the area of family law if in the final analysis adequate resources were not provided. I am conscious of the importance of providing improved access to justice through the legal aid scheme. To this end I succeeded in increasing Exchequer funding for 1993 immediately on taking over responsibility for the Legal Aid Board. In addition, in 1994 I secured £5 million and this year I succeeded in obtaining £6.2 million as grant-in-aid for the Legal Aid Board for 1994. This compares with a provision of only £2.7 million in 1992. An increase of this magnitude has never been matched since the legal aid scheme was initiated. I do not want to embarrass Senator McGennis any further by referring to the depredations on the Estimate of my Department for legal aid at the turn of this year and I will refrain from doing so.

Mrs. McGennis: Information on Marian McGennis  Zoom on Marian McGennis  I will convey to my colleagues what the Minister said.

Mr. Taylor: Information on Mervyn Taylor  Zoom on Mervyn Taylor  I wish to inform Senators — I know they will be pleased to hear this — that waiting lists in law centres have been significantly reduced. I am confident that the developments which have taken place and those which are planned for the coming year — I hope to open some new law centres — will have a major impact in reducing further the waiting period in the existing law centres. My hope is that lengthy waiting lists, which have already been reduced significantly, will be a thing of the past.

[1950] Senator Honan called for more expenditure on legal aid, counselling and the courts and for more judges and court support staff. These are good objectives, but I remind her that these items of expenditure are referred to in other circles as State spending. I have often heard it said that the State is a big spender and that spending by it keeps increasing. These items are part of State spending, are important and this Government supports them. Other Senators and parties who criticise State spending should bear in mind the sort of things on which these moneys are spent.

Senators touched on several other matters which are part of the Government's programme and fall outside the direct application of this Bill. I already referred to legal aid. Over £1 million is provided this year for the development and improvement of the family mediation service and the counselling services generally. It is my intention to facilitate the continued development of those services. With regard to family courts, the Minister for Justice intends to bring forward proposals for improvements in the way with which family law cases are dealt.

In my introduction to the debate I stated that the Minister for Social Welfare will introduce specific legislation to deal with certain social welfare matters raised by provisions in the Family Law Bill. This will be aimed at ensuring that no spouse will be disadvantaged in terms of his or her social welfare entitlements as a result of his or her legal status being changed from married, separated or deserted to divorced. This is a very important difference in the position which will pertain in 1995 compared to the time of the divorce referendum in 1986. Likewise the taxation measures included in this Bill were, unfortunately, not before the people in 1986.

This Bill is an important part of the Government's programme of family law reform. The individual measures in that programme, administrative and legislative, are important social initiatives in their own right, apart from the question [1951] of divorce. They should also be seen as part of an integrated approach aimed at strengthening the institution of marriage while at the same time addressing the consequences of marriage breakdown and improving access to the law for persons affected.

Senator Gallagher and other Senators referred to the in camera system which applies at present in the hearing of family law cases. I am glad they did because a speech I made recently opened up that subject for debate and discussion. I am glad that challenge is being taken up. We have to look at this again very carefully. There are considerations from two angles. It would be highly advantageous if a body of precedence, practice and conformity between the various courts hearing these cases up and down the country was arrived at and this cannot be done as long as they are heard in camera. Even if they were opened up, it is true that names would and could not be mentioned. There is still the fear that, perhaps in some rural areas at least, the particular circumstances of a particular family might be known and identifiable as a result of a description being given in a newspaper of a particular case. This is a worry and concern. It may not be adequate and we should discuss it.

I was pleased that Senators raised this and I look forward to ongoing debate on it. If the feeling is that this should be done, I am prepared to seriously consider lifting that ban on reporting in family law cases, to a limited extent at any rate. I thank Senators for their contributions to what has been a valuable and informed debate and I look forward to discussing the Bill further with them on Committee Stage.

An Leas-Chathaoirleach:  Thank you, Minister. I want to assure you that Senator O'Kennedy was listening to you on the monitor.

Question put and agreed to.

[1952] Committee Stage ordered for Wednesday, 22 February 1995.

Sitting suspended at 5.50 p.m. and resumed at 6 p.m.


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