Seanad Éireann - Volume 137 - 28 October, 1993
Matrimonial Home Bill, 1993: Second Stage (Resumed).
 Question again proposed: “That the Bill be now read a Second Time.”
An Cathaoirleach An Cathaoirleach
An Cathaoirleach: Senator Roche is in possession and has approximately 12 minutes.
Mr. Roche Mr. Roche
Mr. Roche: Last night, while noting its complexity, I welcomed this legislation. Maybe it is indicative of the complex nature of our society to introduce a measure which we all welcome and regard as a civilised step forward. It is extraordinary that we have to go to such convoluted lengths to achieve that purpose. Nonetheless, the Bill is welcome.
It seems, as I said, to codify in law what should be the norm in a civilised society which regards itself as Christian. It recognises that in a marriage, both partners contributed in their different ways co-equally — the Minister made this point in his speech — to the building of the assets of the family. I especially welcome the sentiments expressed by the Minister for Equality and Law Reform, Deputy Taylor, in introducing the Bill. It is not acceptable that the major asset of most families — the family home — should be in the name of one partner, invariably the husband. I endorse the view that women who choose to take on the nurturing and homebuilding role, work for their families and, through their families work for society, should be recognised in law and in fact as opting for a career as meaningful and worthwhile as those who choose careers outside the home which attract monetary remuneration. The Minister made that point in his Second Stage speech and it is worth emphasising.
It is a bitter fact that women who build a family home, having suffered generations of role devaluation by male chauvinists, should, more recently, have suffered a similar devaluation from their sisters in radical feminism. The Bill is a meaningful and significant advancement in the human rights of women in the home. It is overdue and a concrete, if  partial, expression of society's recognition of the value of the homemaker and the nurturer. It is a timely vindication of the role and the importance of a woman who chooses to make the family her career. The Bill, in the Minister's own words, establishes joint ownership of the matrimonial home as the normal form of home ownership applicable in this society. All sides of this House rightly recognise its value and commend the Minister for his action.
While I welcome the Bill, I wonder if we should not be going further — this is my final point. The family home is a central asset in the life of the family but it is not the only asset which flows from the marriage. I have in mind the building up of family businesses, which is invariably a joint development and to which both partners contribute. Like the family home, all too often the legal ownership is registered under one partner's name, usually that of the husband. Invariably, the role of the woman has no concrete or legal recognition. The family farm is another example. We all know the central role played in the family farm ventures by the wife, but she seldom gets any concrete — and certainly no legal — recognition for that role. Indeed, this Bill, for all its virtues, goes to some trouble — I understand the constitutional nature of the conundrum faced by the Minister and the drafters of the Bill — to specifically exclude the role of the wife on the family farm in that it specifies what is included and excluded from the legal protection extended to the spouse when the family home coincides with the family farm.
The matter does not end with family businesses or farms. The homemaking spouse also contributes to career progress and development and to the accrual of wealth throughout a wage earning career. That contribution, like that to the business and farm, is not recognised in our society and has no legal recognition. Equity and progress demand that we move towards recognising the co-equal contribution towards the accrual of all assets. The Bill recognises one part of the joint contribution made by the partners;  it is a part made in a significant asset and is welcome in that regard. However, I wonder if the Minister should now turn his and his Department's attention to the possibility of a wider recognition in law to the role played by both partners in the accrual of all patrimony, wealth and assets through the marriage. I raise this point, not as a criticism of the Minister, but as an indication of what else we need to do at this stage. I commend the Bill. I am pleased to support it and I congratulate the Minister for introducing it.
Mr. Cosgrave Mr. Cosgrave
Mr. Cosgrave: I welcome the Minister to the House. This Bill is long overdue and its consequences cannot be underestimated. It will, I hope, rubber-stamp what most would regard as the most desirable situation but it does not mean that there will be no difficulties in all cases. Nowadays when a family home is purchased, both names are usually on the deed. However, other cases need to be addressed.
Heretofore, the consent of either spouse was required before a property could be sold, but many of them were tricked into selling their property. There have also been cases where both partners signed a bank guarantee and either one or both were misled or not made fully aware of all the facts. One of the most important aspects of the Bill, as the Minister stated, is that it further recognises the work, commitment and contribution of the housewife. I do not want to compare different households but for far too long there has not been enough recognition of those who, by their own choice or who can afford to stay at home, opt to work in the house. Not every household, whether it be the man or the woman, can afford to pay the bills, the mortgage, and educate the children on one salary. Most people, whether in part-time or full-time employment, require two salaries to provide for an average family and to make the necessary commitment in this regard. This Bill gives recognition without taking anything away from the spouse or both spouses who are at work. It ensures there is no distinction between the spouse who  goes out to work and the spouse who remains at home. The property will now be in the joint names of both parties. This Bill recognises that both spouses contribute in different ways.
Historically, the man went to work while the woman stayed at home to look after the children. There are many instances where men are dependent on the income of the woman of the house because of job difficulties or a change in circumstances. It is important to mark the passing of this Bill and recognise that both spouses contribute in various ways, including a commitment to stay at home to ensure the children are looked after. It is important to recognise the contribution of both spouses in this regard.
I hope difficulties experienced previously will be overcome when this Bill is passed. However, circumstances will only change regarding properties when an individual goes to the Registry of Deeds or the Land Registry to register it in both names. Both spouses will now be registered, something which did not happen in the past when many properties were held in the name of the man. Today most financial institutions ask that a property be held in both names because, in most cases, it takes two people to pay a mortgage and bring up a family. This Bill must not supersede the right of a court to deal with separations or family breakups. A court must be able to make an order regarding the sale of a house taking into account that one spouse may be living in it while the other has moved out. It is important that this Bill does not affect those in difficulty and who seek separation or annulment.
Does the Minister propose to introduce regulations to ensure a simple form of transfer at the Land Registry and the Registry of Deeds? Indeed, speaking against our profession, we must ensure costs are kept to a minimum to enable people to avail of this. I note that no fee will be charged by the Registry of Deeds or the Land Registry. A simple form must be introduced at the Land Registry and the Registry of Deeds so that registration may take effect where necessary. The  Minister is aware of the time it takes, at the Registry of Deeds, in particular, to get a deed of transfer or an assignment in relation to a memorial and the various stamping provisions. The Minister mentioned that no fee will be charged. Does he really mean that? In this life there are few free lunches, dinners, etc. I ask the Minister to outline the situation and to introduce regulations in this regard.
Members on this side of the House may introduce amendments on Committee Stage. However, we support this Bill which gives an automatic right to the other spouse and joint ownership in the property. If one party is adjudicated bankrupt, will this prevent the property being disposed of or will there be a stay in relation to proceedings? Often people fall into arrears regarding mortgages and there has been an escalation in the number of banks and financial institutions looking for judgments and judgment mortgages and seeking to enforce same. I ask the Minister to address this point in his reply.
We are satisfied with this Bill, which is long overdue and I congratulate the Minister on introducing it. It had a long and detailed passage in the other House. I welcome the Minister's assertion that he will take reasonable amendments on board even if they further delay the passage of the Bill.
Mr. Magner Mr. Magner
Mr. Magner: I welcome the Minister to the House. In his speech he summed up, in his inimitable fashion, the decades and decades of injustices done to women. I quote:
In the past, it was commonplace for the family home to be in the sole name of the husband. His wife, in return for looking after the home and rearing the children, was given a roof over her head and the “housekeeping” money. If she was lucky, some limited provision was made for her if she became widowed.
That summed it up. The money was held by the other partner. Down through the years women had no direct influence on legislation as few of them were in the  parliament. It is fitting that a man should redress the decades of injustice inflicted on women. We all know of situations where houses were sold overnight without consultation, it is not so common now but certainly in the 1950s and 1960s it was a reality. It is also true that in some cases, the man would never have had a house as he did not have the wit, drive, or enthusiasm to provide it. It was ironic that she provided the money for the house and that he kept it. I am delighted that the Minister, Deputy Taylor, is redressing the situation as it should have been done many years ago but it is a great start to a historical new Department of Equality and Law Reform.
The Minister referred to houses and caravans, I wish to bring his attention to a new phenomenon, houseboats. There are 1,000 houseboats in Essex. Boats on the Royal Canal, the Grand Canal and the Shannon are the sole residence of couples, some of them married. Because of developments in our estuaries and waterways this will become an increasing phenomenon because in England you can buy a houseboat on the Thames for £60,000. You could not buy anything comparable in the heart of London for a couple of hundred thousand pounds.
Minister for Equality and Law Reform (Mr. Taylor) Mervyn Taylor
Minister for Equality and Law Reform (Mr. Taylor): Provision for boats is included.
Mr. Magner Mr. Magner
Mr. Magner: The Minister is always ahead of me. I am glad because, as I said, it is a new phenomenon.
The one reservation I have is about the courts. In some cases judgments are very prejudiced and redress is not always simple because it is a very expensive process to try to redress a situation where an injustice has been done. The Bill does not allow any interference in that area and there is a poverty trap there to which more thought should be given.
I am delighted that the Bill has been introduced as it redresses generations of injustices. It has been obvious over the last ten or 12 years that in trying to introduce legislation providing for divorce, the main stumbling block was a lack of  clarity in relation to property and financial rights. That is where it foundered despite the Government being warned that women do not easily surrender their rights in exchange for an assurance that they will be looked after, which I think was the expression used. This legislation is also extremely important in allowing further liberalisation of the law in step with modern society. I congratulate the Minister on the legislation.
An Cathaoirleach An Cathaoirleach
An Cathaoirleach: I also had an interest in the point you raised, on section 10, in regard to vessels. I call Senator Sherlock.
Mr. Sherlock Mr. Sherlock
Mr. Sherlock: I welcome the Bill. I also welcome the Minister to the House and congratulate him on his appointment.
As we know, because property was a major issue in the last referendum it is necessary to bring in this legislation. There are, naturally, queries one would have and I hope that the Minister will make provision for them or bring in amendments.
I wish to emphasise a few important points. Section 4 applies to:
any interest in a matrimonial home, whether the interest is legal or equitable, or realty or personalty including an interest under tenancy agreements but excluding an interest held as trustee or licensee or the interest of a tenant under a letting made for the period of the tenant's continuance in any office... Where, upon the commencement of this section, either or both of the spouses concerned is or are entitled to an interest to which this section applies in a matrimonial home, thereupon, the interest shall, subject to the provisions of the Act, vest in them as joint tenants.
A number of people took out joint mortgages to purchase their homes. It is important to have legislation of this kind but one must seek clarification in regard to the situation where a person has left the family home and could be deemed to be guilty of desertion or adultery, for  example, where a person has been outside the family home for, say, three years and has entered into a relationship as a result of which a child was born. Does that person have the right to come back when this legislation has been passed, saying that their entitlement is now strengthened and that as a result they want to claim their share? If the spouse still in the family home cannot provide it, then that spouse could have to move out of the family home and allow the other to move back in. There are people who, unfortunately, find themselves in that situation.
The Bill states that the matrimonial home means the dwelling in which a married couple ordinarily resided or reside either immediately before or at any time after the commencement of this section. Will the Minister clarify the interpretation of that section? I ask the Minister to introduce a system to make it easy for people and to implement procedures whereby people will not need a solicitor. People on a low income probably qualify for free legal aid, but they are at the end of a list as long as your arm with no chance of having their case heard for a long time. The legal profession do not take much interest in this kind of work as there is not much money in it for them. We are introducing legislation to give spouses rights to the family home in the event of there being a successful divorce referendum and, consequently, a large number of people seeking advice. The question is whether such people will have to go to the legal profession and find themselves completely frustrated by the type of situation that we have. Will that be further exacerbated? I appeal to the Minister to provide for people who require that kind of help and advice without having to resort to the legal profession.
Are marriage annulments recognised under the Bill where spouses are separated for other reasons? I scrutinised the contents of the Bill but, when I did that in the past, I often found that my interpretation did not always agree with  the interpretation of those who drafted the legislation.
This is welcome legislation. Great progresss has been made in latter years in so far as tenant purchasers of local authority housing are concerned as well as joint ownership by spouses who purchase and mortgage their property. The importance of this legislation is to make the situation crystal clear because when we talked to people before the last referendum this issue was raised and there really was no answer. In this Bill, however, the answer is being provided in the event of there being a divorce referendum. It is important that property and rights to property are dealt with because they are contentious matters.
Mr. Lanigan Mr. Lanigan
Mr. Lanigan: I welcome this legislation which is long overdue. For many years, in local authority tenancies a joint tenancy agreement had to be signed which protected both partners. It also resolved many problems in the past when there was a break-up or where rows had developed in a marriage or partnership. It is time that both partners in a marriage had equal rights, particularly in the ownership of the family home. It is welcome legislation yet it can be fraught with difficulties. I can see that over the next few years many court cases will be taken — it is mentioned in the Bill but not spelt out sufficiently — where parts of the family home are used for business purposes. Whether that business is a public house, a grocer's shop or a farmhouse difficulties will have to be overcome although I am not sure how. I know that parts of business premises are rated for business purposes and that the dwelling part of the premises is treated as part of the family home. It would be difficult to put a value on a premises if part is used as a business and part as the family home. I do not see how you can adjudicate on that matter. If a formula has been worked out I would like to see it because, apart from the implication in this legislation and in this circumstance, there are other circumstances in which it can come into force as well.
 What would the situation be in the case of a publican who loses his licence because he did not have a tax clearance certificate? What would the implications be for the property rights of the spouse living in the family part of that property? I am not too sure whether the taxman could take over the whole property or that part of the property used for business purposes.
This Bill emphasises the fact that before people get married they will have to realise they are entering into a partnership, not alone on a personal basis but on the basis of joint ownership of property. I hope this means that people will give the matter careful consideration and not let their heart rule their head.
Society is changing in Ireland as in most of the western world. House property has gone up in value and, therefore, this Bill basically deals with middle to upper-class people. People on lower levels of income in local authority houses, or in houses provided by others, will not be affected by it. The day is long gone when women were seen as chattels of their husbands. The Bill is welcome but might not be as necessary now as it might have been before women realised they had equal rights, if not within the law then by virture of the fact that they are part of a family.
What is the situation in regard to a house on which there is an existing mortgage in the name of one of the spouses, and where there is a break-up? Under the new law it is determined that there will be equal rights for both spouses, but if one of the spouses does not pay his or her mortgage, what will happen? How can a mortgage company protect itself in that situation? If someone has a mortgage and feels they are running into trouble with it, prior to this Bill they could make a legal agreement with their partner to transfer the family home to joint-ownership. That could negate the rights of the mortgage company which could not act against the spouse of the person who had taken out the mortgage.
Do the rights to the family home take in only the home? Do they include property surrounding the home? Rights of  way are mentioned in the Bill but does the legislation take in the land on which the home is built, the garden, the lawns or whatever is attached to the house? The Bill does not refer to farm buildings, glasshouses or garages which may be semi-detached from the house. What is the position regarding these? Unless it is clearly stated what constitutes the family home the problems of spouses in conflict will not be eased because one cannot sell a family home in isolation from the surrounding grounds if these are considered part of it. Is there provision in the Bill for this?
I thank the Minister for bringing the legislation to the House. There will be difficulties with it but it is welcome and gives couples a better understanding of what is involved in living together as partners.
Mr. Ross Mr. Ross
Mr. Ross: I read the Minister's speech with some interest. He did not mention, not deliberately I am sure, that this Bill is a precursor to the proposed divorce referendum next year. It is honest, when considering this Bill, to say it is part of the legislative programme of the Government which it genuinely believes is necessary if it is to present a package to the people next year in the proposed divorce referendum which will be more attractive than the last one and which will be passed because of the enabling legislation. I suspect — but do not know — that this is based on a false premise.
The last divorce referendum in 1986 was very interesting and dramatic because, during the campaign, which lasted for a month or so, opinion polls fluctuated wildly and opinion changed dramatically. At one point 60 per cent favoured divorce and 40 per cent opposed it but this position was later reversed. This was an extraordinary sea change of opinion in a matter of months.
Most of the political analysts subsequently said the reason for this change was that the population, particularly women, were scared by a very deliberate campaign which was meant to frighten them into believing if divorce was introduced they would lose their rights to  property and the roofs over their heads. This was, to a large extent, untrue but many people feel that it worked. As the Minister knows, it would have been impossible, even then, for a husband to sell the family home without the consent of his wife. However, many women are thought to have voted against divorce because they believed what was told to them by those who were antagonistic to divorce during that campaign. I doubt this.
There will probably be more to the divorce campaign next year than rights to property, material possessions and pensions. There is a real problem in getting women to vote for divorce because they are frightened in a very intangible way. Much of this is due to the present structure of society, as many speakers said. It is not solely due to material possessions or property but to the fact that men still have the best jobs, salaries and earning power. If I were a housewife — this Bill is directed to and meant to protect such persons — even if I felt I was being given a legal cast iron guarantee of an equitable interest of 50 per cent of the house I would feel nervous about voting for divorce because after those proceedings are taken the person who will earn the money and control the purse strings will still be the man.
We have a structural problem in our society in getting divorce through. Even if we enact all the enabling legislation there are certain things which Governments in any country cannot change, such as attitudes and discrimination. We will have such a structure for many years which will make it very difficult to get women to vote for divorce. This Bill may reassure them. Its symbolism is probably more important than the material benefit it provides and this may reassure them. In effect, women will still get a bad deal out of any divorce arrangements because of the structure of society. Such a structure also exists in other countries but we have special difficulties here because of our traditions, etc. This structure ensures the man is in control of the family purse.
 What will be the position of a husband and wife who, under this Bill, have a joint equitable interest in the family home, in a negative equity situation as has happened so often in the UK and is increasingly happening here? If the value of a mortgage on a house becomes greater than the open market value of the house itself, under this Bill will the spouse who is not earning — usually the wife — be landed with a massive liability which he or she cannot possibly pay? My interpretation of the Bill is that if one is entitled to 50 per cent of the equity of the house, which is always assumed to be an asset, one may be faced with a liability. There are many situations of negative equity in Ireland. Spouses with no earning capacity may be landed with a debt which they cannot possibly pay. I do not know whether this is being considered by the Minister or whether he feels this is fair. It is a serious question which leads me to worry about the implications of this Bill for either spouse.
The Bill seems to recognise very definitely the institution of marriage. What will be the situation for people who have been living together as partners for many years, who have children, whose relationships have all the characteristics of marriage but who have not gone through either a religious or a State marriage ceremony? Will they be deprived of these rights because they have not gone through such a ceremony? It is a constant problem for legislators to recognise the differences and similarities between marriage and quasi-marriage and to treat such partnerships in the same way. The Bill fails to recognise that increasing numbers of people are not marrying for reasons which are totally their own business. We are continuing to insist on legislating for marriage.
Mr. Taylor Mr. Taylor
Mr. Taylor: Many of them cannot get married because there is no divorce.
Mr. Ross Mr. Ross
Mr. Ross: That is right but what about the many who do not want to marry? They want to have children, joint ownership of houses and all sorts of security but do not want to get married. This  Bill does not protect them. Does the Bill portray the attitudes to marriage we have always had, that it is respectable, recognisable and easy to pigeon hole? Does it mean that those who take a decision not to be involved in marriage somehow do not deserve or earn the same protection as those who do? Many of those partnerships have several children and, to all intents and purposes, are married.
The Bill does us a service in a symbolic way, as the Minister said in his speech, in that it recognises the role of the housewife in society. Their role perhaps cannot be recognised in a monetary way because it is not tangible or quantifiable, but the Bill recognises that the day of looking at the housewife as doing a duty rather than a job is over. The day of women apologising for the fact that they do not work outside the home is over. Many of us, when we are in this House listening to each other for too long — I especially felt this when I had to listen to Senator Lanigan — would perhaps prefer to be at home changing a baby's nappy instead of doing a necessary part of one's legislative life, which can be extremely tedious. There are great rewards for those who have to or who decide to stay at home. It is something which we must recognise, as this Bill does.
Finally, I reiterate and support something which Senator Sherlock said. There is a danger in all this matrimonial legislation that we are making a great deal of work for lawyers and making life difficult for vulnerable people in our society. People involved in marital breakups are very vulnerable. Many of them are extremely poor, lacking in funds and unable to get the advice which they need on complicated legislation such as this to ensure they know their rights. I do not think that we can justifiably continue to introduce legislation of this sort - which is, of course, politically correct in the modern sense and morally right in many ways — then put it on the Statute Book and not provide the mechanisms for vulnerable people whom this is meant to protect, to be able to use this legislation for their own benefits.
 I do not approve of legislators coming into this House and continuously screaming about more funding for this and that without saying from where the money will come. That is a cop-out, a privilege which Opposition continuously take upon itself and which discredits it because it never says from where the money will come. However, it is wrong to introduce civil liberties and rights, human rights legislation of this sort, in a vacuum without ensuring that every citizen, however poor they are and however difficult and inaccessible they find lawyers, can avail of them.
Minister for Equality and Law Reform (Mr. Taylor) Mervyn Taylor
Minister for Equality and Law Reform (Mr. Taylor): I am grateful to the House for the broad welcome it has given to this Bill and for the constructive nature of the debate in the House. Many Senators referred to the context of this Bill as being in the run-up to the divorce referendum which the Government has undertaken to hold in 1994. This Bill being in position may be an important factor in the determinations of many people when that referendum takes place. However, I emphasise that the Bill stands on its own merits, regardless of whether divorce is introduced and the referendum carried. This Bill stands in its own right as implementing in the view of the Government — and the Opposition also, I am pleased to note — an important and necessary advance in social family legislation in the Ireland of the 1990s, for all the reasons I outlined in my opening speech.
There has been no disagreement on the principle that there should be equal ownership of the matrimonial home. Several Senators wish that the principle went further and extended to all matrimonial property. A number of Senators thought that equal ownership of all the household chattels, while an excellent concept in principle, was not a practical proposition when applied to particular items.
Senator Neville referred to the recommendations of the Second Report of the Commission on the Status of Women for a wide extension of joint ownership of matrimonial property, and he asked for  my views on that matter. I regard these recommendations as deserving of the fullest consideration which, I assure Senators, is what they will get. Those proposals are radical indeed, but only in relation to our traditional thinking and I intend to approach them in a positive way. In some European and Scandinavian countries, as I understand it, the concept of universal community property in marriage has existed for many years. We need to look at how that regimen has operated.
The important task, to which I have asked my Department to give priority, is to get the Government's family law measures, as outlined in the Programme for a Partnership Government, on the Statute Book as early as possible and this Bill is the first in that programme. When this legislation is in operation and up and running, I will be in a position to devote attention to further equality measures in the matrimonial context, including consideration of the various proposals on this subject in the Commission's second report.
Senator Gallagher, while welcoming the Bill, also referred to the growing body of opinion that equal ownership should also extend to the whole of the family farm, to which the non-owning spouse would have contributed much, or to the family business. I fully appreciate this sentiment which, as I said, also reflects the view of the Commission on the Status of Women in its second report. However, like Senator Gallagher, I regard it as important to get this Bill passed first as a priority measure.
Senator Neville and a number of other Senators asked where the family home begins and ends in relation to a farm, for example. As the Senator said, this becomes important when there has to be a sale of the home rather than of the whole farm or perhaps where the spouse who originally owned the whole farm has died and willed the farm portion to somebody other than the surviving spouse. The definition of a dwelling in section 2 makes it clear that the term includes not only the building itself but also any  garden or other land usually occupied with the dwelling. The land must be subsidiary and ancillary to the dwelling. It must be required for its amenity or convenience and it must not be used or developed primarily for commercial purposes.
The definition cannot be so precise, of course, that it could delineate exactly the boundaries of each matrimonial home portion of a farm. Those positions would vary from farm to farm, from property to property. However, it does give a sufficient guideline to enable the parties concerned to agree on the boundaries, at any rate in the overwhelming majority of cases. If agreement cannot be secured the matter will have to be resolved by the courts. This would arise only in a small number of cases. It is provided for in section 17 which states that if the valuation of the matrimonial home portion does not exceed £20 the matter can be dealt with in the District Court, where the procedures are quick, cheap and without problems.
Senator Farrell raised the question about whether a spouse would be entitled to a half share of the family home on its establishment. He said he would prefer a system under which each spouse would only become entitled only to a half share of the increase in value of the house over the period of the marriage. I can confirm that the joint ownership provisions will apply as soon as the couple reside in the matrimonial home. This is what public opinion requires and it is the only way to give recognition to the concept of marriage as a genuine partnership. The norm over the past number of years has been for couples to purchase their homes in joint names.
Senators Neville and Farrell referred to joint ownership of household chattels and wondered how there could be joint ownership of, for example, a dresser or a sofa. They thought it was too detailed a matter for this legislation to be concerned with. Joint ownership of chattels will cause no problem as long as there is no dispute about them. It is unlikely there will be a dispute while the parties are living in harmony. If there is a separation,  some agreement will have to be reached as to the disposal or division of the chattels. Usually, the chattels, or most of them, would remain in the home with the person who continues in occupation of it. However, if there is a dispute the court will decide on how they are to be divided under the Judicial Separation and Family Law Reform Act, 1989.
If this is a problem, it will arise irrespective of the passing of the Bill. In regard to marital breakdown, if the matter goes to court on a judicial separation application, the court, as we know, has the power to make property distribution orders and orders distributing or dividing chattels from matrimonial homes or any other property. This is an area the courts have been dealing with since the 1989 Act was passed.
Senator Crowley urged that provision be made for proper law reporting processes of cases heard in camera under this Bill. The same comment would apply to other family law measures where cases are correctly held in camera. He made the point that this would help minimise divergencies between different judges in disputes between spouses. The important point raised by the Senator will be brought to the notice of my colleague, the Minister for Justice, who has responsibility for courts administration.
Most decisions in these cases vary from family to family and case to case. The majority are factual, rather than legal decisions. Much depends on the particular circumstances of each family, including the family history, the number of children, the amount of property, the prospects and the earning capacity of the husband and wife etc. It is difficult to find two cases which are the same.
Senator Taylor-Quinn covered a wide range of issues in her contribution. She asked about the consequences for an engaged woman who agreed to opt out of joint ownership of the intended matrimonial home and if that would be permanent. Yes, any opt out will have a permanent effect. At a later date it will be open to the owning spouse to convey a half share or other share of the home to her. Her statutory right under this Bill  will no longer exist if she opts out. Section 7 provides that the engaged person must get independent legal advice before opting out. This should offer some protection in these situations. The purported opt out is void if legal advice is not obtained.
Senators Taylor-Quinn and Kelly also stressed the need to train judges who are hearing family law cases and the fact that there might be a lack of uniformity in approach to marital breakdown cases by the judges who hear them. I will bring these points to the attention of the Minister for Justice.
Senator Enright referred to a situation where a wife owns the home but fears that her husband would, by his reckless behaviour, lose the home either during his lifetime or after his wife's death. He suggested that provision should be made for a tenancy in common, rather than a joint tenancy as we provide for in the Bill. I sympathise with the case the Senator mentioned.
Careful consideration was given by the Government to the merits of tenancies in common and joint tenancy before the Bill was introduced. The decision to give equal ownership to spouses by way of joint tenancies was based mainly on the fact that that is the format which entitles the benefiting spouse to the full ownership of the matrimonial home on the death of the spouse who originally owned the home. I accept there are arguments, such as those mentioned by Senator Enright, which would make a tenancy in common system more attractive in certain circumstances. As a general rule — the Bill must provide for generalities — the system of joint tenancy gives better results and is more acceptable.
In the case mentioned by Senator Enright the husband would get an equitable half share of the home under the Bill. If, by his reckless behaviour, he places the family home in danger, there are two possible courses open to the wife. She could proceed under section 5 of the Family Home Protection Act, 1976, which gives a remedy in such a situation, or she could invoke section 6 of this Bill and look for an order from the District  Court, if the valuation of the house is £20 or less, disapplying section 4 and revesting the husband's half share in the wife. If this is just and appropriate, the court has been given powers to do so in section 6.
Senator Cosgrave asked about the effect of bankruptcy on one or other of the partners in the joint tenancy. If the spouse who benefits under the Bill is already bankrupt when the Bill comes into operation, joint ownership will not come into effect. That position is specifically excluded by one of the sections. If the benefiting spouse becomes bankrupt after the Bill is enacted and the spouse has become entitled to a half share of the home, that half share would be subject to the bankruptcy and will vest in the official assignee. A similar position would apply in any family home or property which is jointly owned or owned in common if one of the joint owners or owners in common became bankrupt. The normal bankruptcy provisions would apply.
Senator Cosgrave asked that the forms relating to the vesting of the legal interest in the Land Registry and the Registry of Deeds, which I am to prescribe by regulation, be kept as simple as possible and that they be made available as soon as the Bill is passed. It is my intention to keep those forms as simple as possible and I hope they will be available as soon as the Bill is passed or shortly thereafter. He asked that the costs be kept to a minimum. That would also be my intention. I can confirm that there will be no stamp duty or registration fees in connection with those transactions. That is provided for in the Bill.
Senator Sherlock asked for an interpretation of the expression, “immediately before”, in the definition of a matrimonial home. Senator Sherlock must have been looking at the original definition in the Bill as introduced in the Dáil. It was changed subsequently in the Dáil. The present definition makes it clear that a matrimonial home is a dwelling in which a married couple ordinarily  resided or reside on or at any time after 25 June 1993, that being the date on which the Bill was introduced.
Senator Sherlock also raised the question of a spouse who had deserted three years before and whether that person would have a right to acquire a half share in the former matrimonial home. The simple answer to that question is no. The joint ownership conferred by the Bill is only available where the spouses have ordinarily resided together on or after 25 June 1993. A spouse who deserted prior to that date and who would otherwise benefit from the joint ownership provisions is excluded from the provisions of the Bill by virtue of the desertion.
Senator Lanigan asked how it would be possible to segregate the dwelling portion from the business portion of a mixed business-dwelling premises. Section 17 makes provision for the court to settle any disputes on this point. This would be the District Court where the rateable valuation is less than £20. If it is not possible for the spouses to agree where the boundaries would be, the court will decide the extent of the matrimonial home portion, its parameters and the rights of way and any other easements attaching to either the dwelling or the business portion.
A common situation might be if a matrimonial home consisted of a flat over a shop. There could be common access to the shop on the ground floor and the upstairs premises. Logically, one applies the same provision as would apply if the portions were separately owned to start with as they often are with a common right of way over the common parts. I would envisage that in the majority of cases the parties would agree but if they do not, the court, in a simple, quick, easy procedure in the District Court in most cases, can fix those parameters.
Senator Lanigan suggested that this was a middle class Bill directed at middle class situations. I would dispute that. Many couples on relatively low incomes have saved to raise the deposit on a home. In most cases such property would already be in the names of those spouses  but if it was not, the Bill would confer a benefit on the non-owning spouse.
Senators will note that tenancies of matrimonial homes and not just ownership are included. I am sure Senators who are members of local authorities will have encountered, as I have many times in constituency work, cases where the tenancy of a local authority house is in the name of one spouse. The tenancy ends up in the name of the spouse, usually the husband, who happened to go down to the local authority and sign for the house.
I saw no reason why that situation should not be covered by the Bill. Tenancy of a local authority dwelling is as much a matrimonial home as the occupation or ownership interest of a house in Foxrock or any middle or upper class area. When a local authority tenant buys the house from the local authority, as many do, the name on the original tenancy agreement is the name used. Therefore, it is important that the Bill apply to such tenancies as well as to ownership.
Senator Lanigan asked if the Bill would cause any problems for mortgage companies and Senator Ross mentioned the question of negative equity. If after the Bill is passed there is a mortgage, the mortgage remains a mortgage on the entire property. If the benefiting spouse wishes to benefit from the grant of the half share interest under the Bill, obviously they take that subject to the mortgage. The position of the mortgage company is not affected.
Senator Ross made a valid and fair point about the negative equity position. The benefiting spouse must decide whether they want this “benefit” or not. If they decide that the so-called benefit is, in fact, a disadvantage rather than an advantage, that is, if the mortgage is greater than the value of the house, presumably they would then avail of the simple opt out procedures provided in the Bill. They could decide that taking on the burden of a house with a mortgage debt which is higher than the value of the  property would not amount to taking any benefit and avail of the opt out procedures.
Senator Ross said that I did not refer to this Bill in the context of the divorce referendum. That was quite deliberate. The Bill is designed to confer ownership rights where hitherto no such rights existed. It is intended to do something tangible about the ownership patterns which should exist within marriage.
Whether rights should apply in a non marital situation is a bigger question. People who live together and are involved with property can and should make their own arrangements as to purchase procedures. Different considerations apply in a non marital situation. The general law will continue to apply in those cases.
I have dealt with most of the points Senators raised. I will be happy to discuss the detail of the Bill with Senators on Committee Stage and to answer any further queries they may have. Any amendments put forward will have my careful consideration. Many amendments from all sides of the House were accepted during the passage of the Bill through the Dáil and any useful additions or improvements that may be put forward from any side of this House will be carefully considered. I thank the Members.
Question put and agreed to.
Committee Stage ordered for Wednesday, 3 November 1993, subject to agreement between the Whips.
Sitting suspended at 12.10 p.m. and resumed at 2 p.m.
Seanad Éireann 137 Matrimonial Home Bill, 1993: Second Stage (Resumed).