Dáil Éireann - Volume 291 - 25 May, 1976
Family Home Protection Bill, 1976: Second Stage.
Minister for Justice (Mr. Cooney) Patrick M. Cooney
Minister for Justice (Mr. Cooney):
I move: “That the Bill be now read a Second Time.”
The primary purpose of the Bill is to protect the members of the family of a vindictive spouse from having their home sold or otherwise disposed of by him over their heads. The Bill is also directed towards actively encouraging spouses to place the family home in joint ownership, by the abolition—in section 13—of stamp duty, court fees and registration fees on transactions transferring ownership of the home from one spouse to both spouses jointly.
The Bill, thirdly, proposes changes in the present law so as to give a spouse greater opportunity to clear off mortgage or rental arrears that the other spouse may have accumulated. Finally, the Bill provides for a wide-ranging  protection for a family against the improper sale or removal of household chattels.
The main feature of the Bill is, as I have mentioned, the protection of the families of vindictive spouses from having the family home sold over their heads. I should, incidentally, mention at the outset that although the Bill is drafted without discrimination between the sexes, I propose for convenience to refer in my remarks to “the wife” and “the husband” in cases where it is more likely that one or the other would be involved.
The question of what is the most suitable legal machinery for giving effect to the policy of protecting families from vindictive sales is not an easy one to resolve. Although there are a number of possible approaches towards solving the problem, each with its advantages and drawbacks, two types of approach would appear to have the most to be said in their favour. These are, firstly, a registration system, whereby a wife who registers a charge or caution against her husband's property will be protected, and, secondly, what may be called a “consent” system, whereby the consent of the wife to the sale of the family home by the husband will as a general principle be a precondition of the validity of the sale.
For reasons that I will mention presently, the Bill has adopted the second solution, of requiring the wife's consent. However, I believe that, at the outset, I ought to explain why the Bill has not adopted the registration system, which admittedly has a number of beneficial aspects. That system has been adopted in England by legislation in 1967 and was recommended—in a particular context to which I will refer later—by the Committee on Court Practice and Procedure in their very valuable Report on Desertion and Maintenance.
The registration system has, as I have said, a number of beneficial aspects. It is relatively simple. It presents few conveyancing difficulties. A woman who has been advised by a  solicitor will be able to protect her position by registration of a charge and rest assured that the home will not be sold over her head.
However, the registration system has weaknesses that I believe render it an insufficient solution to the problem of vindictive sales. Firstly, the wife's protection is entirely dependent on her taking the positive step of registering a charge against her husband. Quite clearly, as between a husband and wife, registration would be at best an unfriendly and in most cases a positively hostile act. Where the spouses were getting on well together it would be unusual for a wife to register a charge. Moreover, even where the relationship with her husband had deteriorated, a wife might hesitate for a long time before taking the step of registration, which could very easily damage their relationship still further and could even be the final factor leading to a separation. It is necessary to keep in mind that registration, if it is to serve its purpose at all, must be open to be seen by anybody—and, therefore, by the husband. She might, accordingly, decide to hold back from taking such a step. On the other hand, under this system, so long as the wife does not take the step of registering, she is given no protection, and there is a danger that she will wait too long in a number of cases.
Secondly, a registration system will not provide any protection in cases where the husband literally walks out of the home, having secretly arranged for its sale behind his wife's back.
The weaknesses of a registration system have been commented upon by a number of writers, among them Professor Bromley, in Family Law (4th edition, 1971) at pp. 393-394, Professor Khan-Freund of the University of Oxford, in an article in volume 33 of the Modern Law Review p. 601, at p. 614 (1970), and Mr. Cretney, also of the University of Oxford, in Principles of Family Law (1974), at p. 174. Cretney makes the point—which I think is a good one—that the protection afforded by a registration system —[and I quote]
 would be more generally effective if it were a matter of routine to register a charge in favour of the wife whenever a matrimonial home is bought. If relations remain good no one would suffer. If there were discord the wife would be adequately protected without the necessity of taking a step which may be practically difficult, and will be seen as a hostile act. This is not the present practice.
I have no doubt that if we were now to introduce a system relying on registration we would find the same thing, that is to say, the registration of a charge would not be arranged as a matter of routine—and, when one thinks about it, that is not surprising because if a couple, at the time of their marriage, were disposed to bother to register the charge on the matrimonial home, why should they not take the more straightforward step of having the home in their joint names?
The basic weakness in a registration system has been concisely expressed by Professor Crane: “In an apparently successful marriage there may not seem any need to register until too late”. The quotation is from The Matrimonial Homes Act 1967, 32 Conveyancer (New Series) p. 85, at p. 95 (1968).
For the reasons that I have outlined, therefore, the Bill does not base the protection that it affords on a system of registration. Instead, it adopts the more direct solution of providing, by section 3 (1), that where one spouse, without the consent of the other, purports to convey any interest in the family home, such a conveyance is to be void. This general principle is subject to two conditions that I will mention in a few moments.
Under the Bill, if a man wishes to sell the family home, he will have to obtain the written consent of his wife before doing so. In most cases—indeed, almost every case—this will present no problem. The decision to sell will be a joint decision and the wife will readily give her consent. However, there will be cases where the wife refuses to give her consent. As a general rule, I think it is fair to say that these are  cases where the relationship between husband and wife is already a bad one. It may be a case where, for instance, the wife has already been virtually deserted by her husband and he may be offering her significantly less attractive accommodation in place of the home in which she is residing. If the wife refuses to provide her consent, the Bill proposes—in section 4—that the husband may apply to the court requesting it to dispense with her consent but the court is to do so only where it considers that it was unreasonable for her to withhold consent. In determining this question, the court is to take into account all the circumstances of the case, including the needs and resources of the spouses and their dependent children and, where the husband is offering alternative accommodation, the suitability of that accommodation in comparison with the home that the husband is proposing to sell.
Section 3 (2) gives protection to a bona fide purchaser for full value who proves that he has taken all reasonable steps and made all reasonable inquiries in regard to the purchase from a husband who turns out to have sold the home without his wife's consent. This protection is necessary since otherwise, in many cases, purchasers would always have a cloud of uncertainty hanging over their title. They might have taken all reasonable steps to check the matter but they could never be fully satisfied about the security of this title. In a case where the vendor appeared to be a bachelor there would always be a chance that a wife might turn up—perhaps from abroad—sometime in the future. In the case of an apparently married man who was selling a home with his wife's consent, the purchaser could have no guarantee that the woman with whom he was living and who provided her consent was, in fact, his wife, since the man might be bigamously married. Moreover, if one looks at it from the point of view of a vendor who is in fact a single man or a single woman, it will be obvious that serious problems could be created because the vendor would be called on, in effect, to prove a negative, namely that he or she is not married and the difficulties of proving that negative could be so  great that some would-be vendors could find it very difficult to sell their homes since would-be purchasers might tend to buy from married couples where the question of consent would be less likely to cause difficulty.
Accordingly, as I have said, bona fide purchasers are protected under the Bill, but only where they have provided full value and can establish that they have taken all reasonable steps and made all reasonable inquiries in relation to the purchase. I would emphasise that the onus of establishing that this was so will be on the purchaser if the matter is challenged. I suggest that this is the correct approach as a precaution against collusive sales and because a purchaser who was in fact bona fide would find no particular difficulty in satisfying the court to that effect. Because of this provision, I think we can safely assume that the chances that a husband could successfully evade the provisions of the Bill would be very low indeed but as a further safeguard, which should reduce evasion virtually to zero, section 14 makes it an offence with a possible sentence of imprisonment for five years for the husband to give false information to a purchaser.
I have already spoken of the weakness of a registration system as a protection for a wife, but the weakness derives not from the system itself but from the fact that many women would be unlikely to avail themselves of it. This, however, is not a reason for excluding registration as an option and section 11 enables a wife to register on the title of her husband's property the fact that she is married. By doing this, she will ensure that the defence of bona fide purchase can never be sustained against her. Still further protection is afforded by section 5 of the Bill, which enables a wife to obtain a court order similar to an injunction where her husband is intending to sell the home over her head, and which entitles her to seek financial compensation against her husband for herself and the children if her husband actually succeeds in disposing of the home. I will be saying more about these sections shortly.
 An exception to the requirement of consent is covered by section 3 (2) which provides that the wife's consent will not be required in relation to a conveyance that is made pursuant to an enforceable contract to make the conveyance where the contract was made before the marriage. The most important case covered by the section is where the man, before the marriage, has contracted to sell a home. Clearly, the law could not provide that his fiancee's consent would be required at that stage. Equally clearly, however, the man could not be relieved of his contractual obligations simply because he had married before the formal conveyance had been effected, and to allow such a thing to happen would be more likely to result in collusion between husband and wife, against the interests of the purchaser, than to result in bona fide protection for the wife. This is especially so when it is borne in mind that the question would be likely to arise, if at all, only very shortly after the marriage.
There is one aspect to the question of legal protection against vindictive sales that I think ought to be stressed since it might otherwise tend to be overlooked or misunderstood. This is the question of compulsory disposition of the family home.
As Deputies will have noted, what is prohibited by section 3 is any conveyance of the family home by one spouse without the consent of the other. “Conveyance” is given a very wide definition—in section 1 (1)—so that, for example, where a husband wishes to mortgage the home or, more usually, where he wishes in the first place to purchase the home by means of a mortgage, he will have to obtain the consent of his wife. In practice, of course, in all but a very small minority of cases, his wife will give her consent for the very same reason as he himself seeks the mortgage arrangement, namely that, for the great majority of couples, unless a mortgage is obtained, they will have no prospect of purchasing the home. However, if a husband is seeking to create a mortgage on a home that he owns outright or if he is seeking to obtain a second mortgage, the position is different in that the purin  pose for doing so will not be to acquire the home but rather to retain it in the face of financial pressure or else to raise money for some business or other purpose. In the latter type of case, a wife's consent may not be so readily forthcoming, and indeed may not be forthcoming at all, and this too, I believe, serves to demonstrate the value of the Bill. The husband may, for example be seeking to raise a mortgage for reasons that may be frivolous or worse—he may, for example, be attempting to finance a gambling debt or drinking spree. In such a case the wife may put her foot down and refuse to give her consent inviting her husband to appeal to the court if he considers that she is being unreasonable. By this means the wife will have quite a considerable veto even over what I might call incipient steps that could, over a period, lead to the loss of the family home.
Whilst the consent of the wife must be obtained for the creation of a mortgage on the family home, her consent will not, of course, be required where, in cases of default in the mortgage payments, the mortgagee seeks to exercise his statutory powers of possession or sale of the home. The Bill does propose changes in the law designed to assist the wife in cases where there has been default in payments. I will be discussing these in more detail shortly. It would, however, be anomalous—and, as I shall mention in a moment, detrimental to the interests of the great majority of couples seeking to purchase their own home—if the law were to say, in effect, that while a mortgagee could exercise his statutory powers against one of the marriage partners, the other partner could veto the exercise of that power.
The reason the Bill permits the mortgagee to exercise the present rights of possession and sale is that to restrict or remove this right if the wife refuses to give her consent would make a mortgage an entirely unsafe if not indeed a worthless security on which to advance money since the obvious consequence would be that the wife would virtually always refuse consent in the joint interest of her husband and herself. It  would, in effect, mean that money would not be advanced for house purchases since there would be no protection for the mortgagee if the husband should default. The result would be that couples seeking to buy a home would find it far more difficult, if not indeed impossible, to raise the money for the purchase price.
The same principles apply in regard to landlords of rented property. If a landlord, when a tenant defaults on the rent, were required to obtain a wife's consent before he could give an effective notice to quit, he would not want to rent in the first place to married couples, since he would, in effect, be creating a tenancy terminable by the tenants—nominally the wife but in practice by both jointly—but not terminable by the owner.
That this is a valid analysis is shown by experience elsewhere. In England for example where, as I have mentioned, a registration system of protection operates, the wife will in almost all cases postpone or release her statutory rights in favour of a mortgagee. As Cretney has observed, “in practice no mortgagee would lend money on a property subject to a...charge” in favour of the wife —Principles of Family Law, at page 169. Cretney also points out, at page 175, that to give the wife protection against a mortgagee in such cases or against creditors of her husband if he goes bankrupt would——
imply a policy of throwing the social cost of housing deserted wives onto individual creditors (rather than society as a whole) whose implications would be very far-reaching.
I am aware that arguments have been advanced by some commentators that a matrimonial home should be specially protected against creditors and there is, in some countries, a certain limited protection —which, however, a number of those countries seem very reluctant to extend in any substantial way, a point which I think has its own significance. Be that as it may, I do not believe that it is possible to argue a case of this kind without reference to what I might call the social context in which  the arguments arise. We have to keep constantly in mind that mortgages are a means of acquiring homes in this State and that a law that might appear to be—or indeed that might in fact be—beneficial to one particular husband or wife, or to both jointly, could, by reason of its being on the Statute Book, make for difficulties for a great number of other couples. Perhaps the best way to sum it up is to say that what this Bill sets out to do—in the sections we are now speaking of—is to protect a wife against a vindictive husband; any argument about protecting either or both of the spouses against execution by creditors is one that raises issues far beyond the scope of this Bill.
The definition of “family home” proposed by the Bill may require some explanation. Section 2 (1) provides that the expression means primarily a dwelling in which the couple ordinarily reside. However it also extends to a dwelling in which a spouse whose protection is in issue—in the ordinary case, the wife—ordinarily resides, as well as a dwelling in which the wife ordinarily resided before leaving, if she has left with just cause. I will give a couple of examples of cases which may make the position clearer.
Where the couple are living together there will generally be no problem: the house in which they are ordinarily residing will be the family home. This will be a question of fact in every case. It is worth nothing, in passing, that there may be more than one family home in that sense in certain exceptional cases, in which event the protection afforded by the Bill will cover both of these dwellings. If a wife is living apart from her husband—for example, where he has deserted her—the home in which she is actually living will be a “family home” for the purposes of the Bill. This, of course, is essential. It would totally defeat the purposes of the Bill if protection were not to extend to the case where it might be most likely to be required, namely, the case where the husband has left his wife and is looking for cash—by the sale of the house—in order to set himself up in a new relationship.
 The third type of home covered by the definition is one in which the wife formerly ordinarily resided before she left with just cause. Thus, for example, if a wife left the home on account of her husband's violence, her consent would be required before he could sell the house that she left. Moreover, if she moves to a house in which her husband has a legal interest, the house will also be a family home for the purposes of the Bill and will be afforded protection accordingly. Technically, if one reads the definition by itself, it will be seen to apply even if the husband has not a legal interest but it is only where he has that the question of the conveyance of such an interest could arise. A situation could arise however in which the wife had gone to live in a house in which the husband had no legal interest but had an interest in the household chattels. The Bill extends protection to the chattels in such a case.
The question may arise in certain cases as to what exactly comprises the physical limits of the family home. Subsection (2) of section 2 defines “dwelling” so as to include a building, structure, vehicle or vessel that is:
occupied as a separate dwelling and includes any garden or portion of ground attached to and usually occupied with the dwelling or otherwise required for the amenity or convenience of the dwelling.
Whilst no difficulties will arise in the case of a suburban semi-detached home, for example, it might not be so easy in certain cases to say where the family home ends and where, for instance, a farm or a business premises begins. In practice, the question should not give rise to major problems, since it should be easy to identify what should be regarded as “going with” the residence. In the overwhelming majority of cases, of course, the question is not even going to arise since a wife will be perfectly willing to give her consent, if required.
Returning to the central provisions of the Bill regarding the consent of a wife, may I invite the attention of Deputies to an important provision contained in section 4 (3). The subsection,  in effect, provides that where the wife is in desertion, the court is to dispense with her consent. “Desertion” here includes constructive desertion, which would arise where the wife had so seriously mistreated her husband as to justify him in leaving her. It would seem to be only fair that a wife who is in desertion, and who, accordingly, is not entitled to be maintained by her husband, should not have the right to veto an intended sale by her husband. However, it will be the task of the husband to establish to the satisfaction of the court that his wife is in desertion before he will be permitted to sell the home. I may mention that a minor drafting amendment will probably be necessary to copperfasten the position in this regard.
Section 4 (4) proposes that where a wife is suffering from mental disability or cannot be found, the court is to give its consent to a proposed sale by the husband if it considers it reasonable to do so.
I turn now to section 5, which I have already mentioned briefly. The purpose of the section is to give a wife a legal remedy in two cases. The first, which is a dealt with by subsection (1), arises where the wife establishes in court that her husband:
is engaging in such conduct as may lead to the loss of any interest in the family home or may render it unsuitable for habitation as a family home with the intention of depriving the wife or a dependent child or children of their residence in the home.
The classic type of case that we are envisaging here is where a vindictive husband, thwarted by section 3, which requires his wife's consent to the sale of the home, devises some plan to get her out of the home by indirect means. He may, for instance, suffer a judgment in collusive proceedings brought by a friend. The ultimate result would be that the home would be sold to satisfy the judgment and the wife would be turned out. Another approach, more directly intimidatory, might be for the husband to interfere with the structure of the house or to  remove the slates so as to make it uninhabitable and to force his wife out. These types of intentional conduct whereby the husband intends either to engineer the loss of an interest in the home—“interest” being broadly defined in section 2—or else to make the home effectively uninhabitable— are covered by section 5 (1). The wife, if she is aware of her husband's intentions, may obtain from the court what in effect is an injunction, the scope of which may be very wide since the section permits the court to “make such order as it considers proper...”.
Subsection (2) of section 5 is concerned with cases where the husband has already deprived the wife or children of the residence in the home by conduct that either resulted in the loss of any interest in it or by having made it effectively uninhabitable. In such a case the court may order the husband to pay to the wife such amount as it considers proper to compensate her and the children for their loss or order him to restore the home to a habitable state.
The courts are thus given a wide discretion, and I believe that they are likely to exercise it in a fair and sensible manner. However, as I mentioned in the debates during the passage of the recent Family Law Act, when discussing new provisions relating to maintenance and exclusion of a violent spouse from the family home, only time can tell how the courts will discharge their new functions. Some time it may be necessary to amend the provisions that are proposed in section 5 of the Bill, but I hope and believe that this is unlikely in the foreseeable future and that the section will be both adequate and reasonable in its practical effect.
Taking all these sections together, I am fairly confident that this machinery of protection will effectively solve the problem of vindictive sales. Although it involves the creation of a wide-ranging mesh of legal rights, the practical effects will be likely to be negligible in relation to the overwhelming majority of married couples. The most that it will normally involve is  the addition of the wife's written consent to the conveyance of the family home, a matter that will be of little significance to either spouse where the relationship is in any way reasonable. However, in cases where things have gone wrong, the wife will have effective remedies with which to protect the interests of her children and herself.
I turn now to sections 6 to 8 of the Bill, which provide assistance for a wife whose husband has defaulted on mortgage or rental payments. Under present law the mortgagee or landlord, as the case may be, is not required to pay any attention to the position of the wife when taking proceedings for possession or sale of the family home. This is not to say that mortgagees have in fact tended to ignore the position of the wife and children. Indeed the general experience in this country has been quite the opposite: mortgagees have gone to considerable lengths not to stand on their legal rights if there are any reasonable prospects that the defaults will be paid off by either spouse. However in strict law the wife's position is not strong. Accordingly section 6 proposes that where the wife's makes payments on the mortgage or lease in discharge of her husband's liability the mortgage or landlord must accept the payments. Under present law he is not obliged to do so.
Subsection (2) of section 6 is a technical provision designed to ensure that the fact that the mortgagee or landlord has treated the payments as having been made by the husband will not have any effect on a claim by the wife against her husband in respect of these payments for a beneficial interest in the home.
If I may be permitted to digress slightly at this point from my description of the major provisions of the Bill, may I reiterate what I have said on previous occasions in this House and elsewhere in regard to the harm that is done to the interests of wives by statements to the effect that a wife who continues to make the mortgage repayments on the family home when her husband deserts her acquires no beneficial interest in the home. This is not the case at all, and  I repeat that some cases have come to my notice—and there must be a number of others in fact—where wives have been led to overlook their legal rights as a result of this mis-statement of the law.
Incidentally, while I think it right to stress that the law as it stands provides this protection, I do not mean to imply that the way in which this right is expressed is not capable of being expressed more clearly and more fully. I intend in fact to look further at this point with a view to seeing whether an amendment could usefully be made. If it appears on further examination that such an amendment would be desirable, I would hope to introduce it on the Committee Stage of the present Bill.
To return to the provisions of the Bill: sections 7 and 8 propose that in proceedings for sale or possession of the family home by the mortgagee or landlord, where there is a prospect of the wife's being able to pay off the arrears or repayments within a reasonable time as well as being able to pay the current payments as they fall due, the court may adjourn the proceedings to see whether she is able to do so. If she is, the court may by order make a declaration to this effect, and if it does so any term in the mortgage or lease that would have the effect of making all sums due become immediately payable as arrears, in addition to the actual arrears themselves, will be of no effect.
I now turn to section 9 of the Bill. This is the section that introduces a system of protection in regard to the household chattels.
I should say at the outset of my remarks on this section that I thoroughly endorse the observations of the Ontario Law Reform Commission in its Report on Family Property Law, 1974, page 146, to the effect that—and I quote:
Where a marriage is sound, property rights in the household goods, as between the spouses, are, generally speaking, irrelevant. It is only during that critical period when the spouses are no longer able to adjust their differences by agreement and  compromise that the owner of the household goods might consider asserting legal rights, and pursue self-help courses of action based thereon.
This is an area of the law where the common law jurisdictions, in contrast to the civil law countries, have been slow to afford protection. In France, Scandinavia and Germany, for example, there are legal prohibitions on the sale of household goods by one spouse without the consent of the other. The same is true in some of the eight states of the United States that have a community of property regime: reference in this context may be made to de Funiak and Vaughn's Principles of Community Property, at p. 288, 2nd edition, 1971.
The only common law country in which similar protection is actually on the statute books appears to be New Zealand. There, a provision introduced by legislation in 1968 prohibits the sale, disposition or removal of furniture from the home where proceedings for a separation order are pending, unless the permission of a magistrate or registrar is given.
I believe that the provisions contained in section 9 of this Bill afford protection that is justified and at the same time sufficient. I think they are based on principles of common sense and fairplay. Once again, I stress that they have no relevance in the vast majority of cases but, in regard to the small minority, this section should, by its existence on the statue book, serve to lessen at least some of the tensions and anxieties that afflict spouses when their day-to-day relationship gets into difficulties.
Subsection (2) of section 9 prohibits the disposition or removal by a husband without the consent of his wife of any of the household chattels when matrimonial proceedings between the spouses are taking place. Where a wife refuses to give her consent the husband may apply to the court for its approval of the proposed disposition.
The definition of matrimonial proceedings includes guardianship proceedings and proceedings under the Family Law (Maintenance of Spouses  and Children) Act relating to joint ownership of the household allowance, or property acquired out of the allowance, as well as proceedings under that Act for the exclusion of a violent spouse from the family home. These may reasonably be expected to be proceedings that in some cases may occasion a degree of vindictiveness likely to tempts a spouse to take somewhat desperate steps. As Louis Nizar has observed:
There is no limit to the blazing hatred, the unquenchable vengefulness, the reckless abandonment of all standards of decent restraint, which a fierce matrimonial contest engenders.
The quotation is from My Life in Court, page 154, 1944.
While the common law already affords some protection to the wife in cases where her husband molests or intimidates her family or herself, by enabling her to obtain an injunction against her husband, the criminal sanction has been included since it is likely to constitute a more immediate and effective deterrent.
Subsection (4) enables a wife in cases where her husband has actually sold or otherwise disposed of such a number of chattels as to make it difficult for her and her children to remain in the home without undue hardship or where he has committed an offence under subsection (2), to apply to the court for compensation. The court may order the husband to return the chattels or it may order him to provide a substitute for them or money in lieu.
In the normal case such an order will only affect the husband, but where the wife has informed a third party in writing that she intends to take proceedings in regard to the chattel, then the court in making an order under the section will be entitled to affect the interests of the third party.
I turn now to section 10 of the Bill. This section is concerned with the question of jurisdiction. It provides that generally the Circuit Court and the High Court are to have concurrent jurisdiction, but that over certain  maximum monetary limits specified in subsection (4) the defendant in proceedings that have been taken in the Circuit Court may require that they be transferred to the High Court. Subsection (3) provides that, where either spouse is a person of unsound mind and a committee of his or her estate has been appointed, the jurisdiction is to be exercised by the court that appointed the committee, subject to subsection (4), which I have just mentioned. The District Court is given jurisdiction to deal with disputes regarding the household chattels where the value of the chattels in dispute does not exceed £1,000.
The section also provides that proceedings under the Bill are to be heard otherwise than in public. The same course was adopted in relation to proceedings under the Family Law (Maintenance of Spouses and Children) Act, which has recently become law. Whilst there are arguments both ways on the question of the desirability of privacy of proceedings, I believe that, on balance, it is better that proceedings under the Bill should not be heard in public.
I have already referred to section 11. Its purpose is to enable a wife to register on the title to her husband's property a notice of the fact that she is his wife. If she does so, no purchaser from her husband will be able to establish title in derogation of her interests since the purchaser will be unable to show that he has taken all reasonable steps in regard to the purchase. The section, however, makes it clear that there is no obligation on her to register such a notice. If she does not do so, the purchaser is not entitled to assume that there is no wife. This is the essential difference between the system proposed by the Bill and the general registration system that I discussed earlier. Registration in the Bill is proposed as a subsidiary support for an anxious wife who fears that her husband may try to sell the home behind her back. The primary protection is afforded by section 3 which requires the husband to obtain her consent as a general precondition of the validity of a sale.
 Section 12 is a technical section designed to blend the provisions of the Bill with the Registration of Title Act, 1964. Section 13 is an important provision in the Bill. It proposes that, in future, no stamp duty or registration fees will be payable on any transaction creating a joint tenancy between spouses in a family home where the home, immediately before the transaction, was owned by one of the spouses or by both of them other than as joint tenants—as tenants in common, for instance. This provision is designed to encourage spouses whose family home is owned by one of them to place the home in joint ownership.
I am very glad to say that my information is that in recent years there has been a strong and growing trend amongst married couples setting out to buy the family home to place it in joint ownership. A similar trend is clearly discernible in England as is disclosed by Todd and Jones in Matrimonial Property, at page 77-83 (1972). One factor—I do not say it is the only one—that has influenced this is that lending institutions have shown a willingness to co-operate in such arrangement by raising no difficulties about lending to both spouses jointly. As far as I know, this was not the case in earlier years and it is reasonable to assume that many couples who did not feel they had any real option in the matter when contracting to buy their house perhaps ten, 15 or 20 years ago would wish to transfer to joint ownership if the cost of doing so was not significant. I am therefore very glad to be able to introduce this provision whereby the State will do its part by waiving all revenue duty and court and registration fees. There will be no doubt some cost involved as the transactions will normally be arranged by a solicitor but the fees for a transaction such as this would I hope in most cases be small.
Section 14 is the criminal provision to which I have already referred. It makes it an offence punishable by up to five years imprisonment for the husband to hide from a purchaser the fact that he has a wife—or, for instance, that the premises he is selling  are a family home. The section makes no reference to a fine because the ordinary law would permit a court to impose any fine it thought fit without being expressly authorised to do so. The section is without prejudice to any other liability, civil or criminal—proceedings based on fraud, for example. The maximum penalty therefore, is severe and I think that is as it should be since it is easy to see that the circumstances could be such that a grave or even irreparable wrong could have been done to a wife and it is therefore advisable that the maximum penalty should take account of that possibility.
This concludes my outline of the major provisions of the Bill. I would now like to mention briefly why the Bill differs somewhat from certain other solutions that have been proposed.
First, I wish to refer to the Nineteenth Interim Report of the Committee on Court Practice and Procedure, under the Chairmanship of Mr. Justice Walsh, entitled “Desertion and Maintenance”. Most of the recommendations in that report were incorporated in the recently enacted Family Law (Maintenance of Spouses and Children) Act and the House will not need to be reminded how helpful the report was in that connection.
One of the reports recommendations was to the effect that the protection of the family home should be secured, where the spouse against whom a maintenance order has been made is the legal owner, by the registration of the maintenance order as a lis pendens, the effect of which would be to prevent a sale in such a case without leave of the court. However, as I mentioned during the debates on the maintenance legislation, this proposal was made in the context of the committee's terms of reference which were concerned with maintenance proceedings. The problem of the sale by a vindictive spouse could, though, arise even in cases where there has been no failure to maintain and that is why the Bill proposes a more farreaching protection.
Another recommendation in regard to the sale of the family home was made by the Commission on the  Status of Women in their report. The commission recommended that a system of community of property be examined but, no doubt as a shorter term idea, they recommended the introduction of a system of protection against vindictive sales that would require the husband to consult with his wife before disposing of the home. If the wife did not agree with the proposed sale she would have the right to apply to the court within a specified time and the court would be given power to veto the proposed disposition if it considered that “undue hardship” would be caused to the wife and children.
As Deputies will appreciate, that proposal bears a resemblance to that proposed by the Bill, the important difference being that it placed the onus on the wife to go to court if she objected whereas the Bill proposes that the onus shall be on the husband, that is on the spouse who seeks to disturb the status quo. I do not believe that a system that required the wife to go to court in order to protect her interests in this area would provide a sufficient protection. The economic, social and psychological pressures on her would be too great in many cases. A somewhat similar recommendation in England, which would have put the burden of taking protection on the wife, has been criticised by commentators.
On the broader front, Deputies will have noted that the Bill proposes wide-ranging protection for the families of vindictive spouses rather than proposing a general regime of community of property between the spouses or, more specifically, compulsory joint ownership of the family home.
The immediate reason for adopting the approach in the Bill is one of practicality. The urgent social problem in this area of the law is that of the husband selling the home over the heads of the other members of the family. This problem, I believe, the Bill will resolve in a comprehensive and sensible manner. To have deferred publication of the Bill until such time as the very great legal complexities of community of property or  joint ownership had been analysed satisfactorily would have been unjust to the families who are at risk, all the more so because when all the analysis had been done and perhaps published as a basis for public consideration and debate, there is certainly no guarantee that the public would want to adopt either a community of property system or a system of compulsory joint ownership.
To put this in better perspective, may I say that the necessary preliminary investigation, if done properly, could take years, as both the English Law Commission and the Ontario Law Reform Commission have found. For us in this country to have produced a Bill, therefore, without the necessary painstaking ground-work would have been irresponsible. The Bill that is before the House deals —successfully, I believe—with the major human problems in this area.
This does not mean that I am opposed to joint ownership of the family home. The whole tenor of the Bill makes it plain that I favour it enthusiastically. However, the much more wide-ranging questions of whether a compulsory system of joint ownership or a system of community of property would be desirable or acceptable are questions for another day.
Before concluding, I take this opportunity to say that I believe that the present law relating to the ancillary orders in respect of property that may be made in matrimonial proceedings may be in need of some change. This is, of course, a matter that is outside the scope of the Bill and that will have to be examined separately, I mention it only as a point of interest.
If I have spoken at what might seem too great a length on this Bill it is because I believe that it is an important piece of legislation. I look forward with interest to hearing the views of Deputies on the proposals and I commend the Bill to the House.
Mr. Andrews Mr. Andrews
Mr. Andrews: We, on this side of the House, recognise that the Minister had an obligation to speak at great  length—as he described it—on this very important and, if I might respectfully say so, very complex Bill. The principle of ensuring that the family home cannot be disposed of without the consent of the other spouse is an excellent one. The spouse here includes the protection of the children of the marriage. The Bill very clearly alludes to that specific. Deputies who have concerned themselves with family law—I believe the vast majority of Deputies are concerned in this area— know of quite a number of cases—I believe they are on the increase—of family homes having been sold over the head of the spouse.
We should not engage in any pretence that spouses, effectively, are the wives of marriages, the women, in the context of this Bill. The Minister, whether intentionally or otherwise, averted to this in his opening speech. This Bill is about the protection of the wives and children in the final analysis. This side of the House has been calling for a Bill of this kind for a number of years and we are now glad to welcome the Family Home Protection Bill, 1976. We welcome the intentions and the desirable objectives sought in this Bill.
When the Leader of the Fianna Fáil Party spoke on the legal status of women in Ireland at a seminar organised by the Cork Federation of Women's Organisations to mark the International Women's Year on 26th April, 1975, he stated in his lengthy and comprehensive address in relation to the whole area of women and the law:
An area in which we need to introduce legal reform is that dealing with the ownership of the matrimonial home. At present, very often because the house is in the husband's name, there is a possibility that the courts would recognise that the wife's equitable right to be regarded as joint owner of the house by reason of her work in the home or what she may have contributed to by way of dowry or by way of her work after the marriage. I believe there should be an express enactment by the Oireachtas that she has such a potential right to  joint ownership in the house so that it could not, for example, be sold without her consent.
That was a clear call by the Leader of the Fianna Fáil Party to bring about a piece of legislation like the one which the House has under discussion. Our worry in regard to the legislation before us is that it may cause more problems than it seeks to solve.
It goes without saying that few, if any, in our society will contend against the desirable end to protect the married woman and her children from hardship caused as a result of unhappy differences with her husband. Nobody will quarrel with the absolute obligation of protecting dependent children under circumstances arising from such unhappy differences to which the children, because of their tender years, are not a party. The Fianna Fáil Party have no desire to countenance hardship. We have always been prepared to consent to proper steps being taken to alleviate the burden of hardship in this field.
My contribution at the outset is geared effectively to point out the anomalies and difficulties which may arise in the application of this legislation. We cannot overstress the need for the intent of this legislation. We welcome the opportunity to discuss it. We accept the Minister's bona fides in his desire to protect the spouse against the sale of the house, without his or her consent, and the contents therein, the chattels so called in legal jargon. Anything we say in our contributions will be to ensure the better effectiveness of the legislation which we are now discussing. Article 43.1.1º of the Constitution acknowledges that a citizen, in virtue of his or her rational being, has the natural right, antecedent to positive law, to the private ownership of external goods. Subsection 2º states:
The State accordingly guarantees to pass no law attempting to abolish the right of private ownership or the general right to transfer, bequeath and inherit property.
Article 43.2.1º provides that the State recognises that the exercise of the  rights aforementioned ought in civil society be regulated by principles of social justice. It also provides in subsection 2º that the State may as occasion requires delimit by law the exercise of these rights with a view to reconciling their exercise with the exigencies of the common good.
I believe that the function of the Oireachtas, both the Dáil and the Seanad, is to steer a course which gives effect to the whole of Article 43 of the Constitution of 1937. We must be careful, keeping in mind the people we are trying to protect in this legislation, before we interfere with the free buying and selling of property which is part and parcel of a free society. We recognise ourselves as being a free Society. The Minister has paid tribute to the mortgagees, lessors and others who are involved in the buying and selling of property.
In the main, the majority are anxious not to do harm to people from whom they are buying or to whom they are selling property. We must ensure that this and other legislation does not discourage lessors or building societies from letting houses to married couples or couples proposing marriage, or providing the necessary capital by way of mortgage to provide a matrimonial home. The legislation by any measure must not muddy up the title or impose a gratuitous burden on lessors and lessees who in a free society cannot be required to let a house or advance money.
Having studied this Bill in considerable depth and being concerned about its efficacy, legal and otherwise, one must come to the conclusion that the parliamentary draftsmen must have had many sleepless nights when drafting this Bill. I say that in dispensation of the draftsmen because they are given instructions and then draw up the Bill. This is in no way a criticism of them. The legal implications— which I will continue to pursue in outline—in this legislation for the people we seek to protect may be far-reaching in their consequences. That is why this legislation may have been of concern to the draftsmen. We want to produce a legislative product which is good and unassailable. It is a concern  and worry to us that some sections of this Bill may be assailable, constitutionally at any rate, by those who may wish to challenge it on constitutional grounds.
This Bill may be suffering from legislative flabbiness. I have doubts in this regard because I do not want to impugn the integrity of those who drafted the Bill, quite the contrary. It would be unfair and cowardly to do so. The Bill might have been hastily put together without any real thought being given to the wider implications in the field of the right to own personal property and dispose of one's goods, which will have the effect of creating hardships for those it is intended to protect.
It must be remembered that the law, as interpreted by the court, does not stand still. As early as 1957, the Fianna Fáil Party then in Government enacted the Married Women's Status Act. Section 12 enables the High Court or, in certain circumstances, the Circuit Court on application by either the husband or wife to determine any question between them as to the title to or possession of any property. It is becoming increasingly clear that a wife, by reason of her marriage contract— the Minister has very fairly alluded to this in his very lengthy contribution— obtains special rights in relation to the matrimonial home and in the disposition of property. When a judicial separation is decreed, the court has power to leave the wife and dependent children in the matrimonial home and even to deny the husband access to the home. This was copperfastened by the Family Law (Maintenance of Spouses and Children) Act, 1976.
A fundamental concern in relation to this Bill may be that in a desire to deal with cases of hardship it has placed a general restraint and alienation, even in cases where no restraint is necessary. For our part we would have no objection to the extension of section 12 of the Married Women's Status Act, 1957, to give specific power to the court, on the application of a spouse, to restrain the disposition of a family home by the other spouse. This would clearly meet any cases of hardship  which might arise while maintaining at the same time in normal circumstances the right of an owner of a premises to sell or otherwise dispose of property.
The question of legal costs will arise. While section 11 deals with the abandonment of certain fees in relation to the Land Registry and registration in the office of the registry of deeds, the Minister—we feel he might deal more specifically with it in his reply— did not deal with the whole question of legal costs in relation to this legislation.
The question of legal costs does not affect the matter to which I have just adverted. A careful reading of the Bill makes it quite clear that the extent of possible actions in the courts for the purpose of applying this measure are as follows—I do not pretend the list is exhaustive—first, an application by the spouse to the court to dispense with the necessity for consent. Second, an application to the court restraining the other spouse from disposing of certain household chattels. Third, an application by a spouse to the court in relation to mortgagee suits. Fourth, an application by a spouse to the court in relation to proceedings for ejectment by a landlord. Fifth, an application to the court against a third party in respect of property bought by him when the purchase is called into question on the basis of his alleged failure to make inquiries or affecting the value of the property sold. Sixth, an application to the court for an injunction alleging conduct on behalf of the other spouse which may lead to the loss of any interest in family home or render it unsuitable for habitation. Seventh, an application to the court in relation to a third party who has taken possession of certain or all the chattels.
Where will the money come from to enable these proceedings to be made? Court proceedings are expensive, as the Minister knows arising out of his own extensive practice as a solicitor. People who practice law must admit that court proceedings can be expensive. If the only asset of a marriage consists of the family home, furniture and other contents there in, how can applications be brought  under the Bill by either spouse without that spouse running the risk of incurring substantial costs? If one spouse succeeds in the application the costs will come from the other person and this means that the value of the property is abated. There is no use in giving rights unless the person concerned is given the wherewithal to enforce the rights without fear. That is a reasonable proposition in logic, if not in law.
We recognise that if it were proposed to exclude any jurisdiction vested in the courts in respect of many matters in the Bill the Bill could not stand measured against the Constitution. It is not enough to say in a general way that the husband will pay when he may not have the means to do so even though there is an order of the court in force. It may be that paying the cost severely limits the funds available for the upkeep of the husband, his wife and dependent children. This would defeat the object of this very important Bill.
We contend that, legislatively speaking, this is a loose Bill. This becomes clear when one considers the sweeping nature of section 3 (1) which states:
Where a spouse, without prior consent in writing of the other spouse, purports to convey any interest in the family home to any person except the other spouse, then, subject to section 4 the purported conveyance shall be void.
Has the Minister considered what might happen if it was proposed to acquire land, including the family home, for the purposes of the Housing Act, 1966? Deputy Esmonde might help in this matter. In particular, I refer to paragraph 4 of the Third Schedule which provides that notice of acquisition shall be served on every owner, lessee and occupier. It is only they who are entitled to make objections to confirmation of the compulsory purchase order.
Mr. Esmonde Mr. Esmonde
Mr. Esmonde: The legal owner has a title to the land.
Mr. Andrews Mr. Andrews
Mr. Andrews: Perhaps the Deputy would listen to my contribution and,  no doubt, he will challenge it when he rises to speak. I have already referred to the provisions of paragraph 4 of the Third Schedule. It is only the owner, lessee or occupier who is entitled to make objections to confirmation of the compulsory purchase order by the Minister. Neither in the Bill nor in the Housing Act is there any provision that allows a spouse to object although the compulsory purchase of the premises will deprive her of her rights to the matrimonial home.
One further example which springs to mind concerns the compulsory acquisition of land by the Land Commission. This acquisition may include the family home and there is nothing in the Bill that will enable the spouse who is not the owner to object to this alienation by operation of law. I am sure that if this Bill becomes law many more anomalies will come to the surface in the course of time. Society has been geared to the proposition that in regard to compulsory acquisition it is only the owner who is concerned and who must be dealt with.
For these reasons alone we ask that the Bill be referred back to the parliamentary draftsman to reconsider all the points made. We ask that between now and Committee Stage the parliamentary draftsman would have another look at the Bill, for which the Minister will not deny responsibility. In the final analysis, it is he who must carry the legislation through this House. The Minister and this side of the House have in common the fact that we are concerned that the people we seek to protect are properly and thoroughly protected. We do not want this legislation to become a bonanza for lawyers or a lucrative paradise for them. Probably I say that against those who engage in this aspect of the law. We ask that between now and Committee Stage the parliamentary draftsman examines in detail the ramifications of these proposals. This Bill is well intentioned but there is the fear that it will cause a great deal of legal uncertainty and litigation not only between spouses but with many other persons.
 Section 3 (3) imposes burdens on the purchaser and it may prove unworkable. Again, it may affect the people it is intended to help. The relationship of vendor and purchaser is a sensitive one. For instance, how would a purchaser know if the written consent of a spouse had been obtained by undue influence, by fraud or by forgery? Can the buyer be sure that in buying the property he or she is not buying a lawsuit in regard to property that the buyer bought bona fide for a decent price? Such property may be taken away from the purchaser as a void conveyance at the suit of the spouse. The purchaser, having regard to the law, is entitled to fixity of tenure just as much as our forefathers became so entitled. The matter is made worse in that section 3 (3) provides that if a question arises in any proceedings whether the conditions specified in this subsection were fulfilled, the burden of providing this shall fall on the purchaser.
That may not be what one might call taking the correct side in the context of current social thinking but, nevertheless, as legislators we have an obligation to ensure that our laws are applied equally and that they have applicability in equal measure to all. Does the Minister seriously think that the building societies or other lending agencies will advance money on such a title? If these agencies lend such money and if the sale is avoided at the suit of the other spouse their security will then disappear and they will be left with such remedy as may be open to them against the purchaser. We can envisage many circumstances where, if the matter is put to the test, the purchaser no matter how well he acted in good faith and had tried to fulfil the provisions under the Act may find it impossible to discharge the burden of proving same and then would be left with the doubtful privilege of trying to get back from the owner-spouse the moneys paid by him to that spouse for the purchase of that house.
Throughout this contribution the thread of concern for the people whom this legislation is intended to protect is foremost. If I advert to that fact it is clearly to instil in the minds of those  who may think that in some way I am taking the side of building societies or lending agencies against the people we hope to protect by this Bill, that we are trying to perfect what we consider to be impure legislation. That is the reason for acting as devil's advocate in the context of the legislation before us. It is extremely important legislation and its effects are far reaching and important to those whom it will affect and benefit. It will be important in the main to the wife and children. Consequently, this contribution can be seen as intended to protect the spouse and children and their position in law and not to have this legislation become a plaything in the hands of those who would wish to opt out of their legal, moral and social obligations.
It is now necessary to consider a matter touched upon earlier, the position of a lessor and the position of a mortgagee. It is not fashionable in certain quarters to say anything good about either a lessor or a mortgagee but it is not yet suggested that a lessor does not own the property proposed to be let and that the mortgagee does not own the money. Leaving aside what one's views may or may not be concerning lessors and mortgagees it will be necessary to look upon the hard facts of life on the grounds that this bears repeating, that a lessor does not have to let and a mortgagee does not have to advance money. While the question of title has already been dealt with, sections 6, 7 and 8, as we understand them, may attempt—again, the Minister may confirm that it is not so and if he does we will accept his statement without reservation—to circumscribe the rights of lessors and mortagees notwithstanding specific provisions contained in existing letting agreements and mortgages freely entered into for the benefit of the lessor or the mortgagee.
The constitutionality of the Bill is very doubtful but it appears clear that the proposals contained in these sections may amount subject to what the Minister may say, to an invasion of the right of private ownership of external goods protected under Article 43 of the Constitution. If that situation is a matter of constitutional.  fact the Minister has an obligation to bring it back for amendment to give it the effectiveness so desired by this House. We want the Bill to be effective and to protect the spouse and children in the event of the irretrievable breakdown of marriage by way of constructive desertion and in many other ways alluded to in the Bill. We want, unequivocally, the rights of the spouse and children protected absolutely. That is the reason I have raised these points.
Section 8 (2) is of far-reaching importance in that it invades the right of a mortgagee to have a provision in the mortgage deed providing for the capital sum as a whole becoming due in default of payment. This provision is common to practically every mortgage deed and has always been found necessary to protect a person who advanced money by this method. It has always been held that unless this provision is in a mortgage deed all the mortgagee can do is sue for such arrears as had occurred prior to the date of his proceeding and he or she can never bring proceedings for the return of that money from mortgagors in arrears. The same considerations apply to leases. It probably is socially desirable that relief should be given in this way but has the Minister considered the effect this will have on persons with properties to let and societies or bodies having money to advance to people who are newly married or about to get married? We have to recognise everybody's right in the context of this Bill.
Until we reach a stage that a lessor will be obliged and directed to let his house and a building society will be obliged and directed to lend their money such persons and bodies will not do so. The Minister is probably aware that money is difficult enough to obtain at present for house purchases for persons intending to marry without adding retrospectively this substantial difficulty and making the procuring of an advance of moneys infinitely more difficult.
I should like now to turn to the question of chattels. It is wholly wrong for one spouse to denude the house of chattels. However, we feel  that the High Court has sufficient powers at present in this regard and section 9 of the Bill may, again subject to what the Minister may say, not be altogether necessary. The courts in proceedings have adequate powers in relation to chattels in the matrimonial home and in section 9 (6) there is an important amount of furtiveness in dealing with chattels whereby if one spouse secretly disposes of a chattel to a third party without selling the other spouse is not entitled to get it back. In the ordinary practice of human affairs this emphasis on information in writing is quite unreal. Suppose, for example, the other spouse does not know the identity of the third party or cannot find it out even by the most thorough investigation, that spouse is in a wholly different situation from a person who is informed by the other spouse that an open sale is about to be made of chattels or a chattel in the house. This section may draw no experience from ordinary human behaviour.
The Circuit Court as presently constituted, as we understand it, is totally unsuitable for matrimonial cases. It is a civil bill court, as the Minister knows, except in special stated circumstances. The proceedings must commence by civil bill with a defence being entered. This contrasts unfavourably with the special summons in the High Court which provides that the matter comes via the Master of the High Court to the court directly and each person's point of view is stated on affidavit. This is in the absence of family courts.
I have alluded to the party Leader's speech, already quoted, in Cork on 26th April, 1975 where he called for the examination of the setting-up of family courts but in the meantime this was the procedure. It is important to point out that it is rarely that circuit court jurisdiction in respect of persons of unsound mind is invoked as this procedure is too cumbersome although the Circuit Court undoubtedly possesses such jurisdiction and if a concurrent jurisdiction is given to the Circuit Court special rules will have to be enacted so that the proceedings  can be really conducted in a summary manner.
It can be gathered from what I have said that this side of the House is not opposed to this Bill—far from it; we welcome the intention and the principles behind the Bill. This party are not opposed to the protection of wives in distress or difficulty but we feel that if this measure is tested constitutionally there may be some doubt as to its efficacy in that respect. God forbid it will be so tested. Nevertheless, we have a duty, if we are serious in respect of the people about whom we are concerned, to state these facts. All Deputies will be anxious to ensure that the legislation in respect of the people we seek to protect will be good legislation and does not end up in a quagmire of argument and counter-argument, expense and counter-expense, hardship and counter-hardship. That is why I felt it incumbent on me to express in this debate these views for which I make no apology.
The constitutionality may be in some doubt. Some spouse, almost certainly a husband, may challenge its constitutionality. If some wealthy husband considers himself badly done by under the terms of this Bill—one must look at the extreme cases—no doubt he will challenge it. The Minister rightly said in his speech, and used a fascinating quotation in that it is absolute truth and it is worth repeating:
There may reasonably be expected to be proceedings that in some cases may occasion a degree of vindictiveness likely to tempt a spouse to take somewhat desperate steps. As Louis Nizar has observed “There is no limit to the blazing hatred, the unquenchable vengefulness, the reckless abandonment of all standards of decent restraint, which a fierce matrimonial contest engenders”.
It is a matter of fact that if a situation arises in marriage where the husband and wife are at daggers drawn—it does not always happen, but hopefully they will have their blazing rows away from their children and that these are not a party to such  bitterness as a breakdown of marriage —where there is a complete breakdown, brought about by deep hatred between one female human being and one male human being in circumstances where, say, the male partner feels that he is badly done by, he will go to the ends of the earth to bring about continuing hurt to his marriage partner. This is a matter of fact and that is why I say that one must examine the possibility, if not immediately at least in the not too distant future, of a constitutional action arising out of this Bill. It is a source of great worry to this side of the House—and the Minister and his parliamentary draftsman must also have been aware of it —that the Bill could be tested constitutionally and found unconstitutional. I hope this does not arise as the Bill is well-intentioned and the Minister made a fair contribution in his Second Reading speech. He is well aware of the problems which exist in regard to full desertion or where a person is in desertion—constructive desertion—and where the marriage has irretrievably broken down.
It is all very well to talk of important pieces of legislation of this nature, family law reform; it is family law reform in a piecemeal fashion but important because it deals with specific areas, but it does not deal with all areas and in that way is defective. The Minister may have been in error in not at least touching on the situation where marriage irretrievably breaks down and one or other spouse may wish to remarry and—I will not put a tooth on it—obtain a divorce. The Minister has avoided the word in his contribution.
Mr. Cooney Mr. Cooney
Mr. Cooney: Is the Deputy in favour of it?
Mr. Andrews Mr. Andrews
Mr. Andrews: The Minister made a speech in Galway in regard to the contraception debate where one side of his party went one way and the other side went the other way. I shall come back to this; I shall talk about leadership or lack of it. The Minister made a speech in Galway at the Fine Gael Ard-Fheis which from their own point of view, happily, was not televised  as I understand it, having regard to reports.
Mr. Cooney Mr. Cooney
Mr. Cooney: I remember a Fianna Fáil Ard-Fheis that should not have been televised.
Mr. Andrews Mr. Andrews
Mr. Andrews: It is a pity they did not televise our magnificent concert on Saturday night last.
Mr. Cooney Mr. Cooney
Mr. Cooney: I apologise for interrupting the Deputy and for diverting his attention from the Bill.
Mr. Andrews Mr. Andrews
Mr. Andrews: I do not mind being diverted, it is a subject which we are deeply concerned about. The Minister in his speech in Salthill stated that he was for contraception, but that he would not introduce a Bill in relation to this until the Fianna Fáil Party would allow a free vote thereon. That is what I would call avoiding the issue. In the first instance, the Minister said that the Minister for Health was really responsible for matters on contraception but later on admitted that the Department of Justice are responsible for the main area of contraception and divorce. That is symptomatic of the lack of leadership in the Fine Gael Party and in the Coalition generally. The Minister has asked am I in favour of divorce. The Minister should give his views on the subject.
Mr. Cooney Mr. Cooney
Mr. Cooney: I have asked Deputy Andrews for his views because he has raised the subject.
Mr. Andrews Mr. Andrews
Mr. Andrews: The Minister is in a position to introduce legislation in relation to this area of family law, which in the final analysis, and sometime in the future, will have to include divorce. I feel obliged to give a final illustration in relation to the anomalies which arise on this Bill. Suppose a third party, having made such inquiries as he thought were necessary to purchase property, gets married and suppose his transaction is attacked by the other spouse and he, being unable to discharge the onus of proof, finds himself with a void conveyance, what is he to do? He has now a family home and his interest cannot be alienated without the consent of his spouse. Litigation originally  between three parties at least, if one is to exclude the lessor and mortgagee now attracts a fourth party, namely the spouse of the purchaser. When all this exercise is over, the parties will no doubt have the satisfaction of having received a decision, but under the present state of things the inroads made on the assets by this proposition will create hardship for those whom this Bill is intended to protect. It seems desirable to question whether or not legislation should intrude into areas of family life in such an intimate fashion, when it could be argued that statute laws should do no more than provide protection for either spouse where all the other normal remedies are inadequate. It is important to remember that the Succession Act of 1965—an admirable piece of social legislation—provides that a widow should have a legal right to one-third of the estate of her husband where he dies leaving an estate, and one-half of the estate where there are no issue. Why could this principle not apply between the parties while they are alive, so that the wife would, in effect, have a charge of one-third interest in the family home in her own right and a charge for such further share as may be appropriate if she has children, such right arising in her capacity as trustee of the infants' entitlements? This would do away with the necessity of consent, and at the same time protect the position of both wife and child. The charge to which a wife would be entitled would be greater where she has made financial contribution towards the purchase price of the family home.
The definition of family home requires a careful explanation. It might be considered that I am raising a hare in this respect. For instance if a man buys a publichouse with accommodation annexed to it where the family resides, is the spouse's consent necessary for the sale of the publichouse portion of the premises or is her right exercisable in relation to the living accommodation only? This Bill refers to the family home as a dwelling in which the married couple ordinarily reside. I have already dealt at considerable length with constitutionality and its possible attack on those grounds by a vindictive and bitter spouse.
 It is fair to say that the male farming community who are traditionally slow to marry are hardly likely to burst into a gallop towards the altar if it means that the farm which has been in their family for generations will, in effect, pass out of their control completely in the event of their getting married. It is important to realise that the effect of this Bill is more far-reaching than the Succession Act of 1965 which in effect introduced the charge system. The result of this Bill may be to place a total embargo on sales of family homes, and may cause considerable difficulty in the future for the spouses and children whom it seeks to protect. We welcome without reservation the intention behind this legislation but we feel it is our duty to point out that we are concerned about its legislative purity and effectiveness. We accept without reservation that the Minister brought forward this Bill with the best of intentions but having said that it is well to point out that the views expressed were geared towards ensuring that in a family breakdown situation a spouse, usually the wife, and the children would not have to suffer the hardship of uncertainty in relation to the disposal of the family home and its contents.
The Minister emphasised an important principle in relation to section 10, that is, the provision whereby proceedings under this legislation are to be held otherwise than in public. This aspect of the Bill cannot be challenged. Because we live in a small society it is likely that many people will be aware of difficulties in a marriage but if the partners in that marriage reach a stage where they must have recourse to the legal process it is well that their emotions be kept private so far as possible. This is why we welcome this statement of the Minister. The same course was adopted in the Family Law (Maintenance of Spouses and Children) Act. The Minister said that while there are arguments both ways on the question of the desirability of privacy in proceedings, he considers that on balance it is better that such proceedings should not be heard in public. In the  context of balancing one argument against another we would agree with the Minister in that regard. Marriage difficulties are the immediate business of no one but the parties involved and the tragedy of the ending of a marriage should be kept as private as possible and not become a tool in the hands of those who were not concerned with the relationship even when it was going smoothly. Such people are only interested in having somebody else's difficulties to talk about and they can be quite injurious in relation to those with whom they purport to be concerned.
In conclusion, I ask the Minister again to consider the suggestion that the Committee Stage of the Bill be taken within the next two to three weeks so as to allow the parliamentary draftsman in the meantime to have a look at the points we raised. However, if the Minister can give assurances in relation to these points, I have no reason to doubt that such assurances would be acceptable to us, in which case that would be the end of the matter but if he cannot give these assurances he might examine the various points raised and ask the parliamentary draftsman to consider the questions I have raised regarding some effects which may result from this legislation.
Mr. Esmonde Mr. Esmonde
Mr. Esmonde: I am pleased to be a Member of this House on the occasion of the introduction of this Bill because for a long time, both in a personal and in a professional capacity, I have sought legislation of this nature, having regard to my experience of dealing with matrimonial cases. It should be remembered that the human race has been very slow to rid itself of the bonds of feudalism in relation to property rights as between husband and wife. Moves in this direction did not occur until the Married Women's Property Act of 1882 after which the matter seemed to fall into the doldrums and there was no further legislation to improve on the disparity that existed between husband and wife in relation to property until the Married Women's Status Act, 1957, which gave a married woman certain rights against her husband in relation to disputed property.
 It is extraordinary that there has been such a long delay, virtually centuries and generations, before we have begun tackling the situation of the difficulties that arise in relation to the family home. This Bill deals with two aspects. One is the rights and relationships as between spouses and, secondly, the rights as between spouses and third parties.
I would like to refer the House to Article 41, 1, 1º of the Constitution which states:
The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.
Paragraph 2º of the same Article states:
The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.
When that Article became part of our Constitution it was criticised severely in that it was regarded as being an empty formula. It is interesting to note that in it the word “Family” appears in capital letters, as if to add emphasis to what the Article was directed at. It will be noted that the family has rights that are inalienable and imprescriptible and antecedent and superior to all positive law. One example of positive law could be rights given by statute passed by Parliament, some Act positively made by the Oireachtas. In this Bill we are providing the answer to the criticism of that Article in our Constitution in so far as we have removed the criticism of the empty formula, the pious platitude, because we are providing machinery to make certain that the principles, in some limited way, in respect of family property and the family home are protected and safeguarded so far as we can do so as legislators in this House.
It is new and novel legislation. The fact that certain difficulties have been referred to by the Opposition spokesman  should not deter us or give us undue cause for concern because, while the Constitution states what I have read out, up to now it lacked the machinery to implement the principle therein enshrined.
I note also that in the drafting of the Bill the Minister, his Department and the legal draftsmen have been very careful to recognise that any legislation introduced to protect the family home must not also, at the same time, be used as a vehicle that may damnify the interests of other people intimately concerned with the proprietary rights in that family home, by reason of transactions or some other event.
The Minister has rejected the point of view which said that the family home can be protected by means of registration. My view is that the Minister was absolutely right in taking that view though he does in the Bill allow for the option of registration as an added protection if any spouse wants to avail of it. But, for the reasons given, the Minister has been perfectly correct to take that decision because when difficulties arise in a family unit, they are usually behind the scenes— nobody knows about them at the beginning—and a lot of damage could be done in relation to the right of the family to remain residing in the family home if the whole matter of protection had to rely on registration. It would have meant virtually the compulsory registration of every matrimonial home in the country. I do not think our people would wear that type of legislation. Quite apart from that is the good, commonsense approach adopted in this Bill, namely, that the person who has the proprietary right of ownership of the property—if he wants to avail of his rights as an owner— must also, at the same time, observe his moral obligations to his family. The onus is placed on that person, be it the husband or wife who happens to be the owner. This is a very sensible and well-balanced approach to this very delicate and difficult area which cannot be faulted. The Minister and his Department are much to be complimented on their approach to this matter.
I should like now to refer to a few  matters mentioned by Deputy Andrews. I came in in the middle of his dealing with a matter concerning compulsory purchase orders being made which might affect the family home. I think he was making the case that the wording in paragraph 4 of the Third Schedule of the Housing Act, 1966 does not allow—say the husband is the owner of the property—for the wife's interests, as provided for under this Bill, to be taken into consideration; that part of that Act, which refers to those who would be served with notice and who would have the right to appear, are the owner, a lessee or an occupier, I cannot conceive of any circumstance arising in which a wife would not be regarded as an occupier in that sense.
Mr. Andrews Mr. Andrews
Mr. Andrews: In what sense?
Mr. Esmonde Mr. Esmonde
Mr. Esmonde: That she would not be allowed to appear, possibly as an objector to it. The word “occupier” is probably the widest term one could use, because it is somebody who is in possession.
Mr. Andrews Mr. Andrews
Mr. Andrews: “In occupation” as distinct from “in possession”.
Mr. Esmonde Mr. Esmonde
Mr. Esmonde: It is synonymous but I do see another point here. I think also that the word “occupier” need not necessarily be taken as physical occupation, in the sense of a person physically sitting on the land.
Mr. Andrews Mr. Andrews
Mr. Andrews: The Bill recognises that in certain circumstances where the wife may have been forced to leave her home.
Mr. Esmonde Mr. Esmonde
Mr. Esmonde: Yes, that she would be an “occupier” in the family home and she would be entitled to appear on a CPO, in those circumstances, to protect her interests.
Mr. Andrews Mr. Andrews
Mr. Andrews: That is what the Bill is all about.
Mr. Esmonde Mr. Esmonde
Mr. Esmonde: Exactly. The Deputy was perfectly right to raise the point. My answer to it is that I think the word “occupier” does cover that category.
Mr. Andrews Mr. Andrews
 Mr. Andrews: Lawyers will go to court about it. That is the difficulty I foresee. One says one thing and somebody else says something else.
Mr. Esmonde Mr. Esmonde
Mr. Esmonde: Having regard to our principles of jurisprudence and our methods of doing things here, one cannot preclude a person going to court about anything. That is a fundamental right of the Constitution and even before the Constitution a person had that right. It has been well established that one does not even have to point to an Article of the Constitution to give one the right to go to court; one has got the right anyway. It is one of those rights that is antecedent and superior to anything that is positively written down on paper as being a right. One has that right.
Perhaps I might deal further with the question of “occupier”. My recollection is that the word “occupier” has been interpreted that a person may not be physically actually in possession of the property. I think occupier's rights have been allowed for, in compensation cases, where the person is residing away from the land and has not used it at all. But, because of some local circumstances, he cannot use the land and he has been given compensation. I think there is decided authority to that effect. That is my recollection but I am subject to correction on that. I think the same position arises in respect of the Irish Land Commission acquisitions. We all know that when there is a list published the person whose land is being acquired has the right to go in, object and be heard as an objector to the acquisition. Certainly, the Land Commissioners are very careful to investigate the family circumstances of a case. While it may look that under the section this is a proper case for acquisition, the commissioners always take the family circumstances into consideration. That is inherent and written in anyway. If the commissioners did not observe that, there would be a very short, quick trip to the appeals tribunal and that would be the end of the acquisition if those rights were not recognised.
At present we have only the  general principles stated in the Constitution. In this Bill we give teeth to those principles. Also the word “conduct” has large and important connotations. People should bear in mind that this Bill is not concerned only with the case of a vindictive husband who may want to sell the property and leave the wife and children without a roof over their heads. There are various methods by which a man can do away with the proprietary rights or convert them into money. One of the simplest and most obvious methods is to take out a mortgage, pocket the money, disappear and leave the wife and children the house with nothing to pay for the mortgage. This is an all too common occurrence. I am glad to say that the attitude of most, if not all, Irish building societies is to be very understanding in those circumstances. Sometimes one could describe their attitude as giving unusual latitude to try to assist the unfortunate spouse who is left in that situation.
I want to point to another matter that has been cause for concern and complaint. I refer to the case where there is a judicial separation and a weekly, monthly or whatever period it is, sum is provided as alimony and the husband does not pay. If he disappears and leaves the country, It is virtually impossible to recover that money from the defaulting husband. The unfortunate deserted wife has got her order for divorce a mensa et thoro. Her order for a weekly payment is a pyrrhic victory. She has nothing except a house if he has not mortgaged it too heavily. All she can do is allow the weekly or monthly payments to build up. She then has to get a judgment against her husband and against his property in the home. She has to try to realise the home after that in her capacity as mortgagee. In other words, she has to sell the home. That is her only method of getting any redress or help.
This has been a common ground for complaint. In most of these cases that I have had experience of the husband has already heavily mortgaged the property so that when  she comes to realise the small few instalments of her alimony she finds that whatever money is obtained for the house has to go to pay off the mortgage. It is fair to say in those cases, particularly where the husband was an alcoholic, that debts have been incurred and judgments have been obtained against the property for the non-payment of the usual household bills. In such cases the husband has got a mortgage, there is nothing left and the wife can do nothing.
The same applies in relation to chattels. Rural Deputies know of cases where husbands have sold off the cattle by degrees for drink and there is practically nothing left. Under this Bill the unfortunate wife of a large family has the machinery to prevent those things happening. I am not sure what happens where cattle are concerned but so far as goods and chattels in the home are concerned she can do something about it. She can also prevent her husband from raising a mortgage on the family home to the detriment of the ultimate residual value of the home. A provision like this has been long overdue.
Deputy Andrews quite rightly said that the situation in relation to a fraudulent transaction can occur. One cannot guard against fraud because the ingenuity of the criminal mind is always there. One cannot wipe it out by legislation. The only think one can do is give adequate and fair protection to the purchaser of what was the family home, put the onus on the owner to tell the truth and if he does not there are sanctions in the Bill. He is liable to up to five years' imprisonment on indictment. One should also bear in mind that this Bill is so drafted that it is not a new code of law in relation to property. Its prime purpose is to protect the innocent spouse from the vindictive conduct of a vindictive spouse. We should not lost sight of that.
Deputy Andrews also referred to the question of lessor and mortgagee and he referred to sections 6 to 8 and stated that these sections as drafted might have unconstitutional implications. He referred to Article 43 of the Constitution. The creation of legal  rights under the Succession Act was also open to the same criticism and nobody has been advised that that is not constitutional. If we go back to the Article I referred to originally, the State recognises the family as the natural, primary and fundamental unit group of society. I hope we will be able to keep it that way and strengthen the family unit. There was some mention of divorce and contraception in the House but my view is that if we spent more time in public debate in strengthening the family unit and paid due regard to its position in society instead of finding easy ways out for those who are not prepared to make a go of family life, we would be a little bit more constructive and would achieve something. There is an undue amount of talk by all in the media on these problems.
Mr. Ray Burke Mr. Ray Burke
Mr. Ray Burke: I remember there was a decision made in Galway on that.
Mr. Esmonde Mr. Esmonde
Mr. Esmonde: The Minister quite rightly pointed out that certain people were more interested in obtaining contraceptives than anything else. We should get our priorities right. The priority is the family unit. A couple get married to rear a family. That is their function.
Mr. Ray Burke Mr. Ray Burke
Mr. Ray Burke: Is it their only one?
Mr. Esmonde Mr. Esmonde
Mr. Esmonde: There are others but the contraceptive pill is not the be all and end all of married life. It never was and never will be, please God, in Ireland. Section 8 (2) deals with lump payments that are provided for in a deed or document, be it a lease or mortgage. Deputy Andrews expressed some concern that the effect of section 8 (2) would be to preclude that remedy to a lessor or mortgagee. On his part, to be fair to him, there was a slight misreading of the situation. It should also be borne in mind that before section 8 (2) comes into effect one has also got to have a look particularly at section 7 (b). When the court has to make a decision on these matters it must be just and equitable in the circumstances before an order  can be made which virtually wipes the slate clean.
One must bear in mind that a person who lets property is interested, first of all, in obtaining an income and, secondly, in having security that his property will repay its value. Likewise, a mortgagee is interested in obtaining repayment of the loan with a profit and security for the loan. One has got to look at the matter in the light of that situation. I do not see anything in section 8 (2) that does away with those principles or requirements. All it does is say that if the arrears are paid up, if there is fair assurance that the annual, monthly or periodic repayments, whatever they are, will be continued the court will say: “Right, everything is paid off up to date. Let us wipe the slate clean and leave the family home there.” We must remember at this stage that the lessor and the mortgagee have been paid what is owed to them. Clauses where a lump sum comes in are usually either by virtue of a penalty or a forfeiture clause. They are basically in terrorum clauses to make certain that the lessee abides by his obligation on the lease and the mortgager abides by his obligations under the mortgage.
It is quite right that this should be written into this legislation because I know in practice where there have been payments by a wife to a building society and where the society has moved for sale of the premises by virtue of breach of a condition or clause of the mortgage because there has been non-payment of an instalment. When the court hear that the payment has been made and the building societies say they have been paid to date, and they are not interested in selling off the property, the slate is virtually wiped clean. There is nothing in law to show that it is absolutely of no effect. There has always been a niggling doubt that the building society on a future occasion could go back to the original omission of payment and say: “This happened on such and such a date and out you go.” It is well that this point has been cleared up.
There is the same kind of approach to breaches of covenants under the Reversionary Leases Act. It is good  to have legislation to clear up areas of doubt which have been in legal minds as to the exact position where time has been given. This is a common occurrence. All one has to do is walk into the Dublin Circuit Court on a Monday morning at motion time to hear cases of unfortunate wives trying to save the family home because their husbands had deserted them, did not send any money home, and left them with the mortgage and the rearing of the family. These unfortunate people have come to look for time. Very often a helpful friend or relative will give them the necessary money to pay off the arrears. My experience, acting on both sides of the fence, has been that building societies always try to avoid selling the family home. One could say that to a certain extent this is recognition of an unchartered authoritative procedure that has been adopted in our courts. Now we have legal sanction for it and this is as it should be.
I find myself in disagreement with Deputy Andrews when he says that the Circuit Court is unsuitable for matrimonial matters. My experience, and the experience of others, has been that the idea of having to go to the High Court for everything matrimonial has been a deterrent to people seeking their fair legal rights where a matrimonial dispute arises. While it may not be such a hardship to somebody residing in Dublin where the High Court is more or less in permanent session, it is quite a different matter when a person living 100 miles or more from Dublin has to come to Dublin for a hearing of their case. Everybody should have the right to go to a court in their local area. If it is easy for a person in Dublin to avail of the proximity of the court, it should be the same for provincial dwellers. Therefore, the Circuit Court should be allowed for that purpose.
Deputy Andrews mentioned the definition of “family home” which appears in section 2. He posed the question: what is the situation where there is a licensed premises with dwelling accommodation? Has the wife's consent to be obtained to dispose of the licensed premises? No, because  the dwelling accommodation of licensed premises has to be separate and distinct from the licensed premises under the licensing code and the Intoxicating Liquor Acts, Therefore, it is possible to sell the licensed premises without selling the dwelling accommodation.
It must be remembered that although a spouse may object to the sale of the family home, there is provision under this Bill for the person who has failed to obtain consent. One must bear in mind that the person who sought the consent from the other spouse may very well be the person who is in the right about selling the family home. It may be that the spouse who is being difficult in refusing to give consent is in the wrong. Deputy Andrews in my view is seeing unreal objections. Knowing him, I doubt if he is pressing that point. As he has made that point in this House, and as I have got involved in some of his points, it is only right that I should meet it.
The Minister referred to certain matters that will require teasing out on Committee Stage. I will not delay on them now, but it might be helpful if the position in regard to wards of court and bankruptcy was clearly set out and if it was stated how it will impinge on the operation of the Bill. I know the bankruptcy area is a difficult one and we have a report of a commission but there has not been any legislation following on that. The position of wards of court might have to be provided for although it is possibly included under the section that provides for recourse to a court of law for an order absolving a person from obtaining consent. It should be possible to provide some procedure in that case to avoid the necessity of actually going to court. There might be some provision whereby the registrar or president of the High Court might have authority to grant a certificate without a formal application.
I would like to raise another matter on which there may be some queries. In advisory and placatory tones I am asking the Minister to clarify the position in relation to  rights being registerable and non-registerable burdens? That point does not appear to be too clear. Possibly it is clear; I may not have read the Bill correctly. We know that certain burdens have to be registered and others do not have to be registered. As far as I know, these are burdens that affect all property. There has been a tendency on the closing of a sale to obtain a statutory declaration that certain burdens do not affect registered lands. I think the statutory declaration deals with those that are not compulsorily registered; in other words, they affect registered lands without being registered.
I have had the unfortunate experience, possibly shared by many other practitioners that some of these statutory declarations are done in a rather easy-going manner without due regard to the statutory declaration. This might be an area of abuse in relation to the family home where there is possibly a smouldering dispute. The ingenuity of the human mind is such that a person who wants to be vindictive possibly will not let the other party have any inkling of the plans that are afoot. One has to be careful to see that there is not a cute way of avoiding obligations under the legislation. I would be grateful if the Minister would direct his attention to that, either in his closing speech or on Committee Stage.
Mr. Ray Burke Mr. Ray Burke
Mr. Ray Burke: I welcome the principle behind this Bill which sets out to protect the wife and family from having the family roof sold over their heads. I say “wife” rather than “spouse”. This Bill sets out to protect both spouses but in the Irish context it will be generally directed at protecting the rights of the wife and family.
It has been questioned in this debate whether the Bill is going against the property rights of the Constitution. My view is that when a man marries and has a family, in view of the responsibilities he has taken on automatically he forfeits—or should do so—some of his property rights  under the Constitution. No man should be able to leave his wife and children without a home.
The Bill is designed to protect the legal rights of the family but a major problem arises with regard to the costs that will be incurred. It will be necessary for a wife to go to court in order to claim her rights under this Bill and here she takes on legal costs. In this country most of the family solicitors are picked by the husband and most of the legal affairs in the family are dealt with by the husband. When a problem arises in the marriage and the wife has to protect herself under this Bill, as well as suffering the trauma of the breakdown of the marriage and of the husband trying to sell the home over her head, she will have the added difficulty of finding a friendly solictor to act for her. In most cases family solicitors are reluctant to get involved in rows between a husband and wife. The wife is then faced with the financial cost of getting a solicitor to appear for her.
The Minister having introduced legislation regarding legal protection should go further and give some assistance towards the legal cost of any action which a wife may have to take to protect the family home for herself and her family. In most cases the wife normally looks after the children at home and she is not in a position to have money to instruct a solicitor to protect her rights. This is one area where free legal aid and advice is essential. In matters of family law, in particular in regard to this Bill, I would ask the Minister to introduce on Committee Stage a section that would extend free legal aid to the wife and family in their attempt to protect their rights. To bring in a law without making it easily and readily available to the people we are seeking to protect defeats the object of the exercise.
As was pointed out by Deputy Andrews, there are many anomalies in the Bill, although we agree that the principle behind it is excellent. For example, the Bill refers to the family home and the protection of the spouses. One of the anomalies in the present law in Ireland is that Church annulments are becoming  much more readily available than annulments by the State. What is the situation of a husband who got a Church annulment? Is he still legally bound to get the permission of his wife, whom in the eyes of the Church he never married but to whom in the eyes of the law he is still tied. Would the Minister clarify that point? Another anomaly I see in the Bill is in relation to the definition of “family home”. Section 2 states:
(1) In this Act “family home” means, primarily, a dwelling in which a married couple ordinarily reside. The expression comprises, in addition, a dwelling in which a spouse whose protection is in issue ordinarily resides or, if that spouse has with just cause left the other spouse, ordinarily resided before so leaving.
The problem in this regard arises in the case of a building which is half residence and half business. For example, the case of a public house or a shop with residential accommodation overhead or a farm with a house on the land. The Minister, on this subject, said:
Whilst no difficulties will arise in the case of a suburban semi-detached home, for example, it might not be easy in certain cases to say where the family home ends and where, for instance, a farm or a business premises begins. In practice, the question should not give rise to major problems, since it should be easy to identify what should be regarded as “going with” the residence.
I do not think it will be as easy as the Minister thinks. Greater clarification is needed or otherwise there will be problems involved in the sale of premises used for business purposes and private accommodation. The Minister said that in the overwhelming majority of cases the question would not arise since a wife would be perfectly willing to give her consent if required. The whole point of the Bill is where the wife does not give consent. The Bill does not deal with the problem cases. This section will become a lawyer's paradise unless it is further clarified.
 The explanatory memorandum states:
(iii) The Bill provides that where a mortgagee or landlord of a family home brings proceedings because of arrears of repayments or of rent due by a spouse, the other spouse may, in effect, apply to the court to be given the opportunity to clear off the arrears and to take over the responsibility for future payments;
I accept that the protection is there but what about the high legal costs involved? A wife seeking protection under sections of this Bill will have to consider the cost involved. It is possible that such a person would have a family and would not be working. Her husband may take off and leave her with the mortgage. Where is the money to come from to continue paying the mortgage? In theory, the home is protected but a wife may not have sufficient money to meet the repayments on the home. In such a case there is little point in leaving her the home. For that reason there is not sufficient protection. The theory is all right but where is the money to come from to continue the repayments on the mortgage?
Dealing with section 4 (4) the explanatory memorandum states:
Subsection (4) provides that where the spouse whose consent is required is incapable of consenting by reason of unsoundness of mind or other mental disability, or has not after reasonable inquiries been found...
What is meant by “reasonable inquiries”? The Minister told us that this applied where a wife was suffering from mental disability or could not be found and the court could give its consent to a proposed sale by the husband if it considered it reasonable to do so but I should like to know how long a court or a husband must wait before the sale can go through on the basis of a wife not being found? If a wife has gone abroad and cannot be found, will it be months or years before a husband can sell the house?
 An important feature of the Bill is that a wife is protected against a husband selling furniture from the home. I welcome that section. One of the most important sections is that which deals with the hearing of any legal battles in chambers. It is wrong and undesirable that family quarrels should be fought out in open court. If family quarrels must go to court to be sorted out, that should take place in privacy. Section 13 is another important section. It states:
No stamp duty, land registration fee, Registry of Deeds fee or court fee shall be payable on any transaction creating a joint tenancy between spouses in respect of a family home where the home was immediately prior to such transaction owned by either spouse or by both spouses otherwise than as joint tenants.
While the State has removed responsibility for stamp duty and fees involved in such a transaction, the solicitors' fees involved might be very high. In this regard I should like to refer the Minister to the legislation which gave the opportunity to householders to buy out their ground rents. Experience showed that the legal fees in many cases were up to five times greater than the actual cost of the purchase of the ground rent. I would be afraid that the same thing would happen under this section. That could prove a deterrent. The Minister could have written something into the legislation concerning new purchases, that from now on all purchases of houses should be in joint names.
The Minister argued quite reasonably against a registration system in favour of a consent system but while recognising there would be a problem in regard to existing ownership of property, for couples starting off from the date of the passing of this Bill, all dwellings should be in the joint names of husband and wife. This would avoid legal problems later on, having to go to court, getting letters of consent and trying to find a spouse and so on. I ask the Minister to consider the possibility of having a section to make it binding that houses purchased  from now on would be in the names of both husband and wife. In Dublin County Council, of which I have the honour to be a member, when a house is allocated to a family we insist that it be in the joint names of husband and wife. This is very desirable and over the years I think such a provision would remove the type of problem the Minister is seeking to resolve in this Bill without necessitating court action which I fear this Bill will give rise to.
The Minister quoted Louis Nizar as saying:
There is no limit to the blazing hatred, the unquenchable vengefulness, the reckless abandonment of all standards of decent restraint, which a fierce matrimonial contest engenders.
If, in this House, we can protect a wife and family from this type of situation we will have done a good day's work.
Mrs. Desmond Mrs. Desmond
Mrs. Desmond: I join in the unanimous welcome of the legislation now before the House. It is a very essential piece of social legislation and another step forward in the improvement of the position of women in our society. As others have said, while in theory it applies to both husband and wife we know that in practice its benefits in the main will go to the wife. It provides an elementary civil right for wives, the right to a roof over their heads and over the heads of the children of the marriage. It is surprising that recognition of such a right should have taken so long to find expression in our legislation.
The struggle for basic civil rights for women has been long and frustrating, fraught with all kinds of difficulties. Tradition had given a superior right in all spheres to the male. He has dominated economically and socially and his dominance has been given the force and protection of the law. Efforts to change this state of affairs were met with opposition, were often misunderstood and were met with a wall of prejudice. Acceptance of the fact that women are human beings with basic rights and entitled to be treated as such has been very slow in coming. The pace has quickened in the past couple of years  and for that the Minister and the Government generally can take credit. Women's associations can also take a great deal of credit. They intensified their campaign in the last couple of years for social justice for women and we can at last say sincerely that their voices are being heard.
We all know cases of women who had contributed most of their lives and labours to setting up a home and who, perhaps, even purchased the home with their savings and who had that home sold over their heads or had to endure threats of having it sold, without any rights under the law. The Minister in his speech, which was rightly commended on both sides of the House, showed his deep concern and the amount of thought that he has given this matter. In that speech he said that in strict law the wife's position is not strong. That is an understatement. Up to very recently in our society the wife had very few rights until legislation that the Minister brought before the House gave her such rights. There were rights for the wife and for the successors and children under the Succession Act but while the husband lived, up to the introduction of the present Bill and the Family Law (Maintenance) Bill, the rights of the wife and family were negligible.
The provisions of the Bill will be welcomed by the associations pressing for the rights of women, particularly by AIM and ADAPT, those associations concerned with deserted and alone parents. It is a chastening experience to listen to problems of members of that association and to hear graphic accounts of the humiliation and degradation they have had to suffer in their married lives without any right under the law, abuse and battering in extreme cases and in cases where the disagreement with their husbands did not reach the extreme of battering, they were subjected to humiliation by constant reminders that they had no right to the home in which they lived. Definitely, this legislation will be welcomed by them and by all interested in the promotion of rights for women.
The main provisions of the Bill are  very worthy ones. I agree with those who say that the ideal is joint ownership of the family home. This is essential to the partnership that exists in marriage, to the dignity of both parties to the marriage and essential to basic justice. The Minister said this was an interim measure and that he is also looking at the question of joint ownership and community of property as the ideal. I am very glad to have heard the Minister make that statement and, therefore, I wholeheartedly support and welcome this interim measure.
The main provision in the Bill here is that a spouse who owns or has an interest in the family home may not sell or otherwise dispose of it without the consent of the other spouse. I am happy with the definition of family home, the home in which the couple ordinarily reside which is the normal definition of a family home. There is also the question of the wife whom the husband has deserted. As the Minister said, this is the usual case one comes across where the husband seeks to dispose of the home to meet financial commitments of his own. We have, too, the case where the wife has to leave the family home with just cause. It is important that these three specific instances should be written clearly into the Bill.
On the question of a wife having to leave the family home with just cause, I should like to mention, though this may not be entirely relevant on this Bill since it is not a function of the Minister for Justice, the importance of providing shelter for such a woman. Some women who have had to leave their homes, with just cause, spend their nights in shelters and their days roaming the streets. There is need for shelter for such people. Such shelter is not available at the moment except that provided by voluntary organisations. I draw attention to the need in the hope that something will be done to meet the situation in the future.
Section 9 deals with restriction on the disposal of household chattels. Chattels are defined as furniture, bedding, linen, china, earthenware, glass, books and other chattels of ordinary household use or ornament  and also consumable goods, garden effects and domestic animals. The wife may get an injunction from the court to prevent the husband disposing of the home or of the essential chattels in the home. Seeking an injunction will naturally involve expense and for the most part we are dealing here with people with no means whatsoever, people whose labour is not rewarded in the normal way in which labour in other spheres is rewarded. These women are totally dependent and, therefore, totally penniless. On an earlier Bill, the Family Law (Maintenance) Bill, it was argued that free legal aid should be available to these people. Free legal aid is vitally important in the context of this Bill.
Reference was made to proceedings being held in private court. This is a very sensitive area and I agree that such proceedings should not be held in open court. Section 13 deals with the creation of a joint tenancy in the family home and exemption from stamp duty and fees. The stamp duty involved was represented as a deterrent to joint ownership. I have no doubt the Minister has had representations made to him about this and I am very pleased, indeed, that he has chosen to abolish this deterrent. It is a welcome provision. The other deterrent of five days' imprisonment for a husband who breaks the provisions of the Bill is one essential if the Bill is to operate as we would wish it to operate.
As I said at the outset, the ideal of a community of property is something at which we should all aim and I am glad the Minister referred to that in the course of his speech today. In the meantime, the wife's interest will be protected by this Bill. There are other matters in relation to the Bill which can be dealt with more effectively on Committee Stage. I certainly welcome the Bill. It is long overdue and I would reiterate my request that, allied to this and other measures aimed at improving the position of women in the home, free legal aid and advice should be made available.
Mr. Callanan Mr. Callanan
Mr. Callanan: I whole-heartedly agree with the general principle of the  Bill. It is a complicated Bill. I agree that free legal aid should be provided because the people mainly affected would not be in a position to meet the costs involved. I am in favour of joint ownership of the family home and the absence of it has, I believe, led to some discontent. Where a husband has no care for his wife and children he could turn around and sell the roof over their heads. That is a situation that must be corrected. I see a problem in defining what exactly is the family home in the case of a business premises. Complications could arise. However, this is really a Committee Stage Bill and we can discuss these matters on Committee Stage. I believe local authorities when giving out houses should give them in joint ownership of the husband and wife. That would go some way towards solving the problem when there are broken marriages and disagreements. Whether we like it or not, these things occur and we must make provision to cope with the situation. This Bill is only for those who do not agree. For the husband and wife who live happily together there is no occasion for this legislation. Unfortunately, however, in the society we live in the question arises. Down through the years there was no legislation to deal with it.
There are cases of disagreement where the husband sells the home, and it can happen the other way round as well. Joint ownership is the ideal way to have a home. Nowadays many people are getting married very young. Nine cases out of ten the marriage will be all right but there will be the odd case where the young fellow did not know what he was letting himself in for. The marriage breaks up, and in these cases there must be legislation such as the Minister is introducing to deal with the situation.
There will be a great deal of legal argument in the implementation of this Bill, and I would be slightly worried about the cost to the State if free legal aid is given. There will be many things which will be hard to define, for instance, in determining the owner of the home. Two people could be living in a house and they might not be legally married at all.
 We all agree with the principle of this Bill but many matters remain to be resolved on Committee Stage. If it does anything to protect the wife from the type of husband who would sell the home on his wife and children, and, vice versa, protect the husband from the wife who would own the house, it will be a worth-while measure. This Bill is not as simple as it looks. It will involve a great deal of legal argument across the floor of the House, and part of the Minister's speech I was able to get through in the short time I had it, recognises the difficulties involved. It is one thing to stand up in this House and recommend that legislation should be brought in and that such-and-such a thing should be done, but another thing to overcome the many snags in changing the law.
I do not intend to delay the House on this Bill. I am not an authority on law. I might talk about agriculture or other matters, but not about law. However, there is a legal man beside me and another legal man on the opposite side who should be arguing out how this Bill can be implemented to the benefit of the husband and the wife and to ensure that no married people lose out.
I thoroughly agree that such cases should be dealt with privately. Family affairs should be settled behind closed doors. If the case has to go to court it should not be on the front pages of the newspapers. In conclusion, I would issue a note of warning that the implementation of this Bill will not be as easy as it looks on paper. However, like everybody else, I agree with the Bill in principle.
Mr. E. Collins Mr. E. Collins
Mr. E. Collins: I want to add my few words of welcome to this Bill. I do not see it as a legal Bill but as a continuation of this Government's excellent policy in the field of social welfare and social security. Why did we have to wait until 1976 to have a Bill such as this which gives a wife the guarantee that her husband cannot throw her out on the side of the road? This Bill should have been on the Statute Book long ago. A great deal of credit must go to the Minister for bringing it in in 1976.
We are all aware of the benefits,  the allowances and assistance schemes which were there before we came into office in 1973, but since we came into office I have personally experienced a great sense of caring on the part of this Government for the underprivileged and the people who cannot fend for themselves or shout for themselves as loudly as, say, the IFA or trade unions. This is a Government that cares for the weaker sections of society, and I fully support their policy.
Such an approach was not there in the term of office of the last Government, and I was in this House from 1969 to 1973. The same interest and involvement in tackling modern sociological problems such as this Bill tackles was not there in the last Government. It is in this Government. This will be borne out in the years to come and will be understood by the people of Ireland at the next election. I am very pleased that we brought in such an allowance as the deserted wives' allowance, the prisoners' wives' allowance, the unmarried mothers' allowance, and the single women's allowance. These were all steps forward and should have been taken years before we came into office. We are not getting credit from the Press or from the public for it, but we have in a very serious way tackled a number of vital areas of social problems. This Bill continues that excellent policy.
The Minister's speech, which was very thoughtful, adequately covered the philosophy behind the Bill. There will be no disagreement on the far side of the House in relation to the principles involved in the Bill. I feel that a wife is most certainly entitled to have her interests and her family's interests in a house protected, and the method as accepted by the Minister, where written consent must be given by a wife or by a spouse rather than by way of registration of an interest is, on balance, the proper approach. The Minister rightly pointed out, and I agree with him, that the registration method would have been a bit odious and might only make worse an already bad marriage, whereas the method adopted in the Bill, where the written consent must  be got by the husband to sell the family home, is a very sound method of approaching the problem. I am pleased to see that there is a substantial penalty for the giving of false information by a husband in this respect. A number of legal problems are involved which no doubt will be discussed on Committee Stage.
The question of joint ownership has been raised and dealt with very favourably in the Bill, and I am pleased to note that the question of paying stamp duty will not arise when joint ownership is being established. Every encouragement should be given to have joint ownership, because it is the easiest way of protecting a wife and of ensuring that a house will not be sold over a wife's head. When this Bill becomes an Act, what means will the Minister take to ensure that the rights of a spouse are there and that she can take certain steps in certain circumstances? It would be unfortunate if the Bill, when it becomes law, was just a law. I would like to see an agency being involved, so to speak, in advertising the Act.
I am very much aware of the dedication and involvement of local assistance officers under the health boards in marriages which are breaking down and which present the problem of income for a deserted wife. The assistance officers play a very important role in such cases. Is there any method whereby they could be brought into being involved in this Act in some kind of an administrative way, because it is to a certain extent social welfare type of legislation, although I appreciate that it is under the Department of Justice? The assistance officers would be of benefit in propagating the Bill to people in trouble. They should be made aware of it and they should be actively told to implement the Bill where possible. The assistance officers' main role is providing income for wives who have had the bad experience of having been deserted or who have been battered by husbands or who are not being kept properly by their husbands. They are doing excellent work. This is really an extension of our approach to tackling this vital area in our society.
 It only relates to houses which are actually owned. It does not tackle the question of houses which are rented or where the families are just tenants of local authorities. Tribute must be paid to the housing officers, because, certainly in my constituency, the approach adopted by housing authorities is one of utter generosity of spirit and I am not aware of any case where a deserted wife has been put out on the roadside. Indeed, I do not think the council would tolerate such an attitude in this day and age but that is something that is not dealt with in this Bill. This Bill is confined to the legal aspect where you have a house owned by one spouse or the other, usually by the husband.
The question of giving the option of registration to spouses has also been included in the Bill. That is a fair point, that a wife may add her name as an interested party in the house. It, therefore, allows the registration system to operate if a wife so wishes. It will certainly protect her against a sale over her head, or against an illegal sale by a husband, who might be vindictive enough to try to outwit the law and his wife. The wife should be encouraged to put her name to the lease or the deeds of the house, because it protects her, even at an earlier stage than when it might be necessary for her to come in again and have to fight by refusing to give consent to sale. In this way her husband would be aware of what was involved in regard to the sale of the family home at any future date. Therefore, this section might be promoted and used by a wife early in the marriage. In cases of breakdown it would be in the wife's interest to have taken steps early in the marriage before the unfortunate position of the breakdown had arrived.
Dáil Éireann 291 Family Home Protection Bill, 1976: Second Stage.