The Gazette 1980

GAZETTE

DECEMBER1980

THE FAMILY AND THE LAW Proceedings of a Seminar held at Blackhall Place, 1 1 October, 1980

The Government's immediate plans for the reform of family law include legislation in the current session of the Dáil dealing with criminal conversation; a Bill which will deal with extensions of the jurisdiction of the Circuit and District Courts and the jurisdiction of the courts in family law cases. This Bill emerges from the recommendations in the 20th Interim Report of the Committee on Court Practice and Procedure for increasing the monetary limits of the civil jurisdiction of the District and Circuit Courts and for conferring new jurisdiction on those Courts. This outline was given by the Minister of State at the Department of Justice (Sean Doherty, TD) when speaking at the Law Society's symposium on "The Family and the Law" at Blackhall Place, Dublin, on October 1 1. He continued (in part): While the general subject of marriage breakdown is clearly a highly complex matter, it was his view that the abuse of alcohol is intricately bound up witn the failure of many a marriage. It is not the only cause or perhaps even the chief cause of marriage breakdown; there are other causes such as immaturity or lack of preparation for marriage. "It has been one of my priorities since being appointed Minister of State in the Department of Justice, to see what legislative changes could be brought about which would make our liquor laws more effective. It is not just a question of examining the liquor laws, but of educating people, young people especially, in how to use alcohol in a mature way and in the dangers of its misuse". Domicile and nullity Other questions that may require the attention of the legislature concern such matters as the law of domicile and the question of nullity. The law of domicile says, in effect, that the domicile of a married woman shall be that of her husband and shall remain so as long as he lives. Most people would agree that this law should be changed. It cannot be changed overnight. "If Parliament did that, and did no more, the result would probably be a spate of legal actions going all the way to the Supreme Court in order to determine what would replace it. The law of domicile has many implications and it is necessary therefore to set out what will replace the present law or possibly to abolish the legal concept of domicile entirely". The Law Reform Commission has examined the law concerning the domicile of married women and has prepared a preliminary draft Working Paper on the subject. The Commission pointed out that consideration of the subject raised some fundamental matters concerned with the question as to whether the concept of domicile should be retained at all or replaced by the concept of habitual residence. "I believe that work is in progress on the subject of habitual residence and a first draft of a scheme for a Conflict of Laws (Habitual Residence) Bill has been prepared. I mention this in some detail here today in order to show that despite the general agreement that the law of domicile should be changed, and despite the goodwill and efforts of all concerned in trying to change the law, as a

legislator I must be as sure as is humanly possible that whatever change is proposed will stand up to scrutiny".

Continued discussion needed The Minister of State commented on the importance of a continuing reasoned public discussion on all aspects of family law. "People have to be aware of the problems before they will contemplate change. They may respond to arguments for change, if the arguments are put forward fairly in a clear and logical manner and are seen to be for the common good. I have met many organisations over the last few months whose primary aim could be loosely described as the betterment of women in our society. Without exception, I have been impressed by their dedication and sincerity and by the honest and forthright way they put forward their views. You can feel assured that all views are being given serious consideration. You should not be disheartened or feel the meetings have in some way been a failure if you do not see your proposals in legislation within a short period. It is important that legislation be good rather than quick and not end up being challenged in the courts for constitutional or other reasons". During the session on "Marriage Break-up" at the Law Society's symposium on "The Family and the Law" the limited powers of the Courts in questions relating to matrimonial property were discussed by Alan Shatter, Solicitor, who also sharply criticised current proposals on the reformation of family law. He said that as a general rule the Courts have no power to transfer property owned by a husband to a wife even if they believe that it is in the interests of the welfare of the family that such a property transfer order be made. If property is held by a husband in his sole name for the Courts to hold that a wife has a proprietory interest in the property she must be shown to have made some financial contribution towards its acquisition. Work done by a wife in the family home as housewife and mother does not in law confer on a wife any proprietory interest in the family home or entitle the Courts to transfer the property into her sole name. The Commission on the Status of Women in 1972 recommended that matrimonial property laws be examined and that the possibility of introducing a system of community of property in marriage be investigated but no progress has been made. Family Law Proposals Lacking in realism

New social policy

Until a family law ideology and a coherent social policy relating to the family marriage has been developed, many of the badly-needed reforms will not be introduced, he told the audience and continued by remarking thai

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