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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".
Family Law Proposals Lacking in realism
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.
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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