Seanad Éireann - Volume 47 - 16 January, 1957
Married Women's Status Bill, 1956—Second Stage.
Question proposed: “That the Bill be now read a Second Time.”
Minister for Justice (Mr. Everett) James Everett
Minister for Justice (Mr. Everett): This is a Bill to consolidate, with  amendments, the law relating to the status of married women and the liabilities of husbands. Explanatory sidenotes have been provided showing the source of the provisions being reenacted, showing what provisions are entirely new, and also showing the provisions which alter or modify existing law.
The Bill makes five important changes in the law. First of all, it makes a married woman liable personally for her torts, contracts and debts, and it extends liability in bankruptcy to all married women. Secondly, it allows one spouse to sue the other in tort. Thirdly, it abolishes restraint on anticipation. Fourthly, it allows a wife or child to enforce a contract made by the husband for the benefit of the wife or child, and similarly, in the case of a contract made by the wife. Finally, it abolishes a husband's liability for his wife's torts.
At present, a married woman can sue and be sued as if she were a single woman, but she is only liable to the extent of her separate property. Under Section 2 (1) of the Bill, her liability will be personal and not proprietary. The idea of separate property is being abolished, and, after the Bill becomes law, the property of a married woman will be her property, just as her husband's property is his property. At present, a married woman can be made bankrupt only if she is trading separately from her husband, and judgment can be entered against her only to the extent of her separate property. The Bill proposes to make her subject to the bankruptcy laws as if she were unmarried, and decrees may be enforced against her personally.
The second change proposed is to allow a husband or wife to sue the other in tort. This is, of course, not an entirely new provision. Under Section 12 of the Married Women's Property Act, 1882, a wife can take all civil proceedings against her husband for the protection, security and recovery of her separate property as if she were a single woman. She may sue him in trover or detinue or in ejectment, and she may obtain an injunction restraining him from interfering in her business affairs. We now propose to give  her, and the husband also, a full right to sue in tort. We are quite satisfied that the granting of this right will not give rise to objectionable or collusive actions. Certainly, it will cause no more objectionable or collusive actions than the present law which allows a child to sue his or her parent in tort.
Section 2 (2) of the Bill will allow a wife to recover against a negligent husband, who, while driving a motorcar, injures her. Most drivers of cars are under the impression that their wives are covered by comprehensive insurance policies. A wife or a husband is not, however, in fact covered by such a policy though a child is. This is because one spouse is not liable to the other in tort. A further point is that, if a husband and a third party by their joint negligence injure the wife, and she sues the third party, the third party cannot recover contribution from the husband under the Tortfeasors Act, 1951. It has been argued that to allow one spouse to sue the other in tort will tend to upset the peace of the marital home. We are satisfied that there is no substance in this. When a man and wife have reached the stage of suing one another, there is very often little peace left to be disturbed. Moreover, the threat of an action in the background is bound to have a salutary effect on, say, the aggressive husband, and, in our view, will prevent a situation reaching what the Attorney-General described in the Dáil as “boiling point”. When a safety valve is introduced at a lower pressure, things are much more likely to right themselves.
It is far better to allow married people to settle their differences at an early stage than to preserve a law which tends to create a situation where the ultimate solution of a separation must be resorted to. The existing statutory provision allowing a wife to sue her husband for the protection of her property has not, in practice, led to an amount of objectionable actions. And it is common knowledge that actions in regard to property are generally more bitterly contested than ordinary tort actions for assault, etc. Experience in the United States shows that, in those  States where tort actions are allowed between spouses, marital security has not been upset to any greater extent than in those States which do not allow such actions.
We have given this whole matter the most careful consideration and we are convinced that we are doing the right thing. Compromise solutions have not proved satisfactory. To allow a wife to sue her husband for ordinary negligence and to refuse to allow her to sue him for criminal negligence can scarcely be justified by anybody who seriously considers the problem. Are we to say that a man who injures his wife in a motor car accident is to be liable because the insurance company pays but that a man who has a habit of beating his wife or who slanders her to the whole community is to escape liability?
If he is to escape liability, the marriage is heading towards the courts anyway, and, eventually, a separation will ensue. That is not the way to preserve peace and happiness in the home, and what is more it does not preserve it. It must not be forgotten that a wife has a right to have her husband prosecuted criminally for torts which are crimes. How much better it is to allow the wife to restrain a militant husband by a civil action than to force her to have criminal proceedings taken against him.
The third important change proposed in the Bill is contained in Section 6— the abolition of restraint on anticipation. This is a device, invented by the Court of Chancery over a century ago, to protect a married woman's property against her husband. It can be applied only to a married woman, and it is a term inserted in a settlement whereby the married woman may be restrained from anticipating the income from her property or using the capital itself. It is generally accepted that the device has outlived its usefulness.
It is a device which can be used, and has been used, to defraud creditors. When money values are declining, it prevents the woman from taking steps to safeguard her interests. It prevents her raising money to start or expand a business or to provide for the education  of her children. Generally, in this day and age, its disadvantages far outweigh its advantages and it is proposed to abolish it entirely. We had thought of abolishing it only in future cases, but that would not help in those cases where it is a hindrance at the moment, and bearing in mind that the court had power to lift it in any particular case—the defect in this being the cost involved and the fact that the courts adopted a rigid attitude—we are not really, as might appear at first sight, embarking on retrospective legislation of a kind which might be thought to be objectionable in principle.
The fourth important amendment of the law proposed in the Bill is contained in Section 8. This section will allow a spouse or child to sue, as beneficiary, on a contract made by the other spouse. Under our law, a third person cannot, except in isolated instances, sue on a contract made for his benefit, if he is not a party to it. One of the exceptions to this rule arises in the case of life insurance policies; and we are extending this exception in Section 7 to cover endowment policies. The difference between Section 7 and Section 8 of the Bill is that Section 7 is designed to create a trust right whereas Section 8 creates a contract right. An insurance policy for the benefit of a spouse or child may not be cancelled by the contracting parties, whereas an ordinary contract may. If a man takes out an insurance policy for the benefit of his daughter and dies subsequently the policy moneys will, under Section 7, be her property and not part of his estate.
The fifth major change in the law proposed in the Bill is to be found in Section 10. We propose to abolish a husband's liability for his wife's torts. A husband is not at present liable for his wife's contracts, unless she contracts as his agent. If, however, she slanders somebody he is liable for the damages. He is also liable for her negligence, and this is a very practical consideration. We think that the existing law ought to be changed.
I have dealt with the main changes the Bill proposes to make, particularly with the proposal that a husband or wife may sue the other for a personal  tort, and have emphasised that, under the law as it stands, a wife may take against her husband any civil action for the protection, security and recovery of her property. I should like now to refer briefly to two suggestions which have been made.
The first suggestion arises under Section 3, the substance of which is taken from the 1882 Act. It was argued that, by saying that the property of a married woman may be disposed of as if she were unmarried, we might, without meaning to do so, be interfering with the law of devolution of property on intestacy. The Attorney-General is quite satisfied that that is not so. Disposition and devolution are two different things and that has been made clear in decided cases in the courts. The second suggestion that has been made is that the Bill interferes with the ordinary marital right of living in the family home. We have carefully examined this suggestion in consultation with the Attorney-General. We are in no doubt in regard to this matter. The Bill proposes no change in the existing law in regard to the marital home. It merely gives the right to sue, a right which the wife already has in regard to her separate property. The Bill does not take away any defence open to the husband. I am speaking of the case where the marital home is the property of the wife.
We will welcome any proposals designed to make this a better Bill. In this connection, I might mention that we decided, when preparing this Bill, to leave the law of bankruptcy as it was, pending a full examination of that law. Senators are, I am sure, aware that our bankruptcy law is out of date and ought to be reformed. The Taoiseach mentioned this in the Dáil in 1941 and a Committee reported on the subject as long ago as 1928. We hope to tackle the whole law of bankruptcy when a suitable opportunity arises. In this Bill, however, we are making one fairly important change. This change has been made because of the argument used by Deputy Seán Moylan in the Second Stage in the Dáil. Under the 1882 Act, where a husband goes bankrupt, a wife who is a  creditor, is postponed until the claims of the other creditors are satisfied. The Bill as originally introduced proposed to re-enact the relevant provision in the 1882 Act. On Committee Stage in the Dáil, I had the re-enacting provision in the Bill deleted. In future, therefore, a husband or wife of a bankrupt, if a genuine creditor, will be able to claim in the same way as the other creditors.
In conclusion, may I say that we regard this Bill as an important advance in legal reform? It will free the married woman from the restrictions imposed on her by the law. These restrictions have been gradually relaxed over the years. Now we propose to remove them altogether. The progress of organised society is judged by the status occupied by married women. If and when this Bill becomes law, we will be able to say that our law as to the legal position of married women is the most modern and advanced in the civilised world.
Éamon Ó Ciosáin Éamon Ó Ciosáin
Éamon Ó Ciosáin: Is fada anois ó deineadh aon athrú ar an ndlí a bhaineann le stádus na mban pósta. Is dóigh liom gur fíor nár deineadh aon athrú mór bunúsach ó cuireadh Acht na mbliana mile céad ochtó dó i bhfeidhm i bPaírlimint Shasana. Go deimhin is mó cor atá curtha ag an saol de ó soin agus is mó athrú atá tréis teacht ar slithe beatha agus an módhanna imtheachta na ndaoine.
Fadó sar ar ritheadh an tAcht so atá ráite agam is beag má bhí aon cheart dlí ag an mnaoi phósta. Ba len a fear céile a bhí na ceartanna dlí go léir. Bhí sí fé'n a chosaint vis-á-vis an saol amach agus measadh gur mar sin ba cheart an scéal a bheith.
Anois tá leasú mór a dhéanamh againn ar an ndlí maidir le stádus na mban pósta ach ag gabháil don obair ar eagla go raghaimís ró fhada sa treo eile, caithfimíd bheath cúramach leis má dheinimíd aithris ar an gcóras dlí atá curtha i bhfeidhm ar thíortha eile maidir le stadus ban pósta gurb ionann cúrsaí sóisialacha agus an léargus agá acu ar an saol.
This Bill is another step in the direction of the consolidation of the law relating to the status of married  women. I think we are entitled to regard it as an important Bill in that connection. I must say that, on the whole, it is a good measure, a measure that should commend itself to the Seanad. At the same time, I am bound to say that there are certain features in it that require further examination.
The Minister has referred to Section 2 of the Bill. I regard Section 2 as the most important section in the whole measure because it is within the framework of that section that most of the changes in the law relating to the status of married women are being brought about.
The Minister referred to the question of civil rights as between husband and wife—the right this Bill, if enacted, would give them to sue each other in the courts of law as ordinary individuals can sue one another. When I read it first, my reaction to that section was that it was going too far in that direction and that, despite anything the Minister has told us this evening, the operation of the section could result in unhappy relations between husband and wife.
I am aware that certain legal rights exist already for the protection of the married woman's status. Here, however, we are opening the door entirely so that the husband and wife will now stand as two entirely different people in the eyes of the law and can bring a civil action in the court for such things as, say, conversion, detinue or even slander, or any of those transgressions that come under the heading of the law of torts. It may be said that the husband or wife would never have recourse to such an action, but that should not be the criterion that should guide us. We are making that provision in such a way that the husband can sue the wife, or the wife the husband, as the case may be, in a court of justice in a civil action.
I realise that an amendment of the law was necessary inasmuch as, in motor accidents, the wife should be given the right to claim for damages against her husband. I take it in a case like that, if she would not have the legal right to sue her husband in court, she could not recover from the  insurance company. We have had the position here that in spite of the fact that the owner of the car—we shall say he is the husband—had a comprehensive policy, his wife sitting in the car beside him was not covered by that policy. That, I submit, was a position that required re-examination and an amendment of the law was certainly desirable. As the Minister knows and as other people, especially those connected with the law, know, there have been cases of hardship because of this position that has obtained up to now.
While I say it is right and proper to amend the law so as to give the married woman that right, I do not think what the Minister mentioned here— the right of the wife to sue the husband for other torts—is to be commended in the same way as giving her the right to sue her husband for the recovery of damages in the case of a motor accident where the wife suffers injury, sometimes serious injury. When you give certain legal rights to people, it is not incumbent on them to exercise those rights. At the same time, the temptation would be there and now, for the first time, we are providing the married woman with the temptation to bring her husband into court in a civil action when, perhaps, she might not ever think of it otherwise.
I do not know whether the Minister and the Government have given this very important question the consideration it should be given. I should like to hear from the Minister, when he is replying, whether any outside bodies were consulted about this change in the law, which, as I said, could in certain cases change the happy relationship that has existed, generally speaking, between husband and wife here. If it is a question of furthering the rights and privileges of the married woman, it would be of interest to find out if, for instance, the organisation known as Bantracht na Tuaithe, the Irish Countrywomen's Association, was ever consulted about the desirability of effecting this change in the law. I will leave it at that.
The Minister mentioned the United States of America. I think he has in  mind the State of New York because, from what I can gather, that is the only State where a wife can bring her husband freely into court in any action in tort. Neither the Minister nor anybody else has adduced evidence here to show that the system there has been working well.
Professor Hayes Professor Hayes
Professor Hayes: I think there were quotations in the other House from American judgments on the subject.
Mr. Kissane Mr. Kissane
Mr. Kissane: I have not seen them. I would like to have them here for our guidance. I suggest that what might be applicable to the United States of America might not be applicable to the conditions here.
There is also the question of changing the bankruptcy law as regards married women. This is also covered by Section 2 of the Bill. I am in favour of that. Hitherto a married woman was not liable in contract unless she was carrying on a separate business. The reason I am in favour of having the bankruptcy laws amended is that I consider no quibble of the law should allow debtors to get away from the payment of their just debts or defraud creditors of the payment of the lawful debts due to them. The same principle should apply to the enforcement of court orders and judgments of courts. I consider it is right that even married women should be made amenable to these.
The restraint on anticipation is another branch of the law that is being amended here. Restraint on anticipation is an equitable doctrine whereby the married woman was prevented from making use of her estate because it was considered by the law that she was all the time under the influence and persuasion of her husband. It was meant originally as a protection for the married woman, but, as matters developed in later years, this doctrine turned out to be inequitable inasmuch as the married woman could not make use of her property, even for good and beneficial purposes. For that reason, I am in favour of that amendment of the law. There are 22 sections in this Bill and we will, of course, have an opportunity of considering them between now and the  Committee Stage. I would, however, ask the Seanad to give special consideration to Section 2 of this measure, because I think the provision goes a bit too far.
Seanad Éireann 47 Married Women's Status Bill, 1956—Second Stage.