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Matrimonial Home Bill, 1993, Re [1994] IESC 5 (24th January, 1994)
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[1994] IESC 5
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Matrimonial Home Bill, 1993, Re [1994] IESC 5 (24th January, 1994)
Supreme
Court
In
the Matter of Article 26 of the Constitution and in the Matter of the
Matrimonial Home Bill, 1993
No.
367 of 1993
[24th
of January, 1994]
Status:
Reported at [1994] 1 IR 305
Finlay
C.J.
1. This
is the decision of the Supreme Court on the reference to it by the President of
the Matrimonial Home Bill 1993 pronounced pursuant to Article 26, s. 2, sub-s.
1 of the Constitution.
The
Reference
2. By
order given under her hand and seal on 3 December 1993 the President, Mary
Robinson, in pursuance of the provisions of Article 26 of the Constitution
after consultation with the Council of State referred the Matrimonial Home Bill
1993 to the Supreme Court for a decision on the question as to whether the said
Bill or any provision or provisions thereof is or are repugnant to the
Constitution or to any provision thereof.
Long
title of the Matrimonial Home Bill, 1993
3. An
Act to make provision in the interests of the common good, in relation to the
ownership of matrimonial homes, to provide for certain other matters affecting
spouses in relation to property and to provide for related matters.
Proceedings
on the reference
4. Prior
to the oral hearing counsel assigned by the court in pursuance of Article 26
presented in writing heads of the argument intended to be made by them and
submissions of law in support of such argument. These were replied to in
writing by and on behalf of the Attorney General together with submissions of
law on his behalf.
5. The
oral hearing then took place before the court on the following days
viz.
The 10th, 11th and 12th January, 1994.
Summary
of main provisions of the Bill
6. The
main provisions of the Bill may be summarised as follows:-
1. Where
a dwelling has at any time since 25 June 1993 been occupied by a married
couple, or becomes so occupied in the future, being a dwelling in which either
or both spouses has or have an interest but which is not owned by them as joint
tenants or as tenants in common in equal shares, the interest in the dwelling
shall vest in both spouses as joint tenants, in the case of a dwelling occupied
since 25 June 1993, on the date of the commencement of the Act, which is three
months after its being passed, and in the case of a dwelling becoming occupied
by a married couple on some date in the future, on such date. [Section 1, s. 4,
sub-s. 2 and section 5].
2. The
court may on an application made in a summary manner to it by the ‘owning
spouse’ declare after hearing both parties that the provisions of s. 4
should not apply to the matrimonial home as and from a specified date. [Section
6].
3. A
“non owning” spouse may by a declaration made in writing after
separate legal advice declare that s. 4, sub-s. 2 does not apply to the
matrimonial home. [Section 7].
4.. The
provisions above set out in relation to a dwelling consisting of a premises
apply alike to a dwelling consisting of a mobile home or boat. [Section 10].
5. Household
chattels as defined by s. 9, sub-s. 7 of the Family Home (Protection) Act 1976,
that is to say, ‘furniture, bedding, linen, china, earthenware, glass,
books and other chattels of ordinary household use or ornament and also
consumable stores, garden effects and domestic animals, not chattels used by
either spouse for business or professional purposes or money or security for
money’ which are in a matrimonial home and are owned by either or both of
the spouses shall in the absence of any express agreement to the contrary
belong to both spouses as joint owners. [Section 14].
6. When
the interest of a spouse in a matrimonial home is a joint tenancy with one or
more persons, the
joint
tenancy shall be severed and become a tenancy in common in equal shares. The
share of such
spouse
in the tenancy in common shall vest in both spouses as joint tenants. [Section
4, sub-section 7].
7. Where
a dwelling to which a spouse becomes entitled under s. 4, sub-s. 2 of the Act
is part of a holding owned by the other spouse which extends beyond the
dwelling and the ground immediately annexed thereto whether owned as a sole
owner or as a joint tenant with some other person such easements will be
created pursuant to the Act for the benefit of the home as are necessary and in
the case of such easements being attached as a burden on lands owned by the
owning spouse and a third party the court may grant compensation for the
creation of such easements. [Section 4, sub-s. 5 and section 17].
Presumption
of constitutionality of the Bill
7. Counsel
assigned by the court to present an argument submitted that the court should
review and reverse the previous decisions made by it holding that there must be
applied by the court to a Bill referred to it by the President pursuant to
Article 26 a presumption of constitutionality.
8. In
the decision of the court in
In
re Article 26 and the Criminal Law (Jurisdiction) Bill, 1975
[1977] I.R. 129 at p. 144 it was stated as follows:-
“In
considering this Bill, which has been passed by both Houses of the Oireachtas,
the elected representatives of the people, the court accepts the principles
laid down by the former Supreme Court in
In
re Article 26 of the Constitution and the Offences Against the State
(Amendment) Bill, 1940
that
‘where any particular law is not expressly prohibited and it is sought to
establish that it is repugnant to the Constitution by reason of some implied
prohibition or repugnancy, we are of opinion, as a matter of construction, that
such repugnancy must be clearly established’ –
per
Sullivan
C.J. at p. 478. This principle was accepted by the former Supreme Court in
In
re Article 26 of the Constitution and the School Attendance Bill, 1942
(per
Sullivan
C.J. at p. 344) and
In
re Article 26 of the Constitution and the Electoral Amendment Bill, 1961
(per
Maguire
C.J. at p. 178). It was submitted by the opponents that the same considerations
should not be applied to a Bill referred by the President under Article 26 as
are applied in the case of an Act which has been duly passed by both Houses of
the Oireachtas and signed and promulgated by the President because the
President has referred the Bill after consultation with the Council of State
and because a question has been raised in relation to the constitutionality of
such a Bill or some provision thereof. The Court does not accept that any
distinction should be drawn in relation to the presumption of constitutionality
between an Act of the Oireachtas and a Bill referred by the President under
Article 26.”
9. This
statement of principle was expressly approved and applied by the court in its
decision in
In
re Article 26 and the Electoral (Amendment) Bill, 1983
[1984]
I.R.
268 at p. 273 ([1984] I.L.R.M. 539) and in its decision in
In
re Article 26 and the Adoption (No. 2) Bill, 1987
[1989] I.R. 656 at p. 660 ([1989] I.L.R.M. 266).
10. The
court is satisfied that the principles it must apply to an application such as
this to review a previous decision made by it notwithstanding what has been
described as the judicial policy of
stare
decisis
is
to be found correctly stated in the previous decisions of this Court in
State
(Quinn) v. Ryan
[1965] I.R. 70 and in
Attorney General v. Ryan’s Car Hire Ltd.
[1965] I.R. 642.
11. In
the judgment delivered by him as the judgment of the court in
Attorney
General v. Ryan’s Car Hire Ltd.
Kingsmill
Moore J. expressly adopted and approved of the judgment of Walsh J. in
State
(Quinn) v. Ryan
where
at p. 652 of the report, he stated as follows:-
“In
State
(Quinn) v. Ryan,
Walsh
J. in his judgment to which the other members of the court assented, refused to
accept ‘
stare
decisis’
as
universally binding in constitutional cases, adding, at p. 127:
‘This
is not to say, however, that the court would depart from an earlier decision
for any but the most compelling reasons. The advantages of
stare
decisis
are
many and obvious so long as it is remembered that it is a policy and not a
binding, unalterable rule.’ ”
12. The
learned judge having considered the establishment and independent function of
this Court pursuant to the Constitution continued at p. 654 as follows:-
“However
desirable certainty, stability, and predictability of law may be, they cannot
in my view justify a court of ultimate resort in giving a judgment which they
are convinced, for compelling reasons, is erroneous. Lord Halsbury himself was
forced to make some modification. Faced with the hypothesis that a case might
have been decided in ignorance of the existence of some relevant statutory
provision or in reliance on some statutory provision which was subsequently
discovered to have been repealed, he suggested that it would not be a binding
authority because it was founded on a mistake of fact. The same reasoning would
be applicable if the decision were given in ignorance of an earlier authority
of compelling validity. Where a point has been entirely overlooked, or conceded
without argument, the authority of a decision may be weakened to vanishing
point. In my opinion, the rigid rule of
stare
decisis
must
in a court of ultimate resort give place to a more elastic formula. Where such
a court is clearly of opinion that an earlier decision was erroneous, it should
be at liberty to refuse to follow it, at all events in exceptional cases. What
are exceptional cases? I have already given some examples of cases which I
would consider exceptional, but I do not suggest that these close the category
and I do not propose to attempt to make a complete enumeration.”
13. The
Court is satisfied that there are not compelling reasons which would permit it
to depart from the previous decisions which have been referred to and that
there is nothing in the present reference which could possibly constitute it an
exceptional case within the general meaning of that phrase as contained in the
judgment of Kingsmill Moore J. in
Attorney
General v. Ryan’s Car Hire Ltd.
[1965] I.R. 642.
14. The
Court must therefore reject this submission made on behalf of counsel assigned
to argue this case and applies to its consideration of this Bill on this
reference the presumption of constitutionality to which reference has been made
and would also apply if and where relevant to the provisions of the Bill the
principles by way of presumption of constitutionality laid down by it in
East
Donegal Co-operative Livestock Marts Ltd v. Attorney General
[1970] I.R. 317 which are summarised in the decision of this Court in
In
re Article 26 and the Adoption (No. 2) Bill, 1987
[1989] I.R. 656 at p. 661 as follows:-
“(1)
That it must be presumed that all proceedings, procedures, discretions and
adjudications permitted or prescribed by the Bill are intended to be conducted
in accordance with the principles of constitutional justice, and
- That
as between two or more reasonable constructions of the terms of the Bill the
construction that is in accordance with the provisions of the Constitution
would prevail over any construction that is not in accordance with such
provisions.”
-
Assertion
to repugnancy to Article 41
15. The
next issue which falls to be decided by the court is the question as to whether
the provisions contained in the Bill vesting in each spouse equal rights of
ownership in the matrimonial home unless they already have these rights are
repugnant to Article 41 of the Constitution.
Relevant
sections of the Bill
16. The
sections of the Bill relevant to this issue are as follows:-
Section 2
“‘Matrimonial
home’ means a dwelling in which a married couple ordinarily resided or
reside on or at any time after 25 June 1993, as their sole or principal
residence and includes any easements attached or annexed to such a dwelling and
exercisable over any other land;
‘Dwelling’
means any building or part of a building occupied as a separate dwelling and
includes any garden or other land usually occupied with the dwelling, being
land that is subsidiary and ancillary to it, is required for its amenity or
convenience and is not being used or developed primarily for commercial
purposes, but does not include a structure that is not permanently attached to
the ground or a vehicle, or vessel, whether mobile or not;
‘Spouse
in whose favour
section
4
applies’ means the spouse who, by virtue of the operation of
section
4
,
becomes entitled to a share, or an enlarged share, to which the spouse would
not otherwise have been entitled in an interest in the matrimonial home
concerned.”
Section 4,
sub-ss. 1-6 inclusive
“(1) This
section applies to any interest in a matrimonial home, whether the interest is
legal or equitable, or realty or personalty, including an interest under a
tenancy agreement 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, appointment or employment or
bona
fide
for
the tenant’s or the landlord’s temporary convenience or to meet a
temporary necessity of either of them.
(2) 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
this Act, vest in them as joint tenants.
(3) Where,
at any time after such commencement either or both of the spouses concerned
becomes or become entitled to an interest to which this section applies in a
matrimonial home, thereupon, the interest shall, subject to the provisions of
this Act, vest in them as joint tenants.
(4) The
interest vesting in both spouses by virtue of subs. (2) or (3) shall be an
equitable interest only in the matrimonial home concerned irrespective of
whether, upon the application of the subsection, the interest in the home to
which either or both of the spouses was or were entitled was a legal interest.
(5) Where,
by virtue of subs. (2) or (3), an interest to which this section applies in a
matrimonial home vests in the spouses concerned, then –
(a)
in addition to any easements already attached or annexed to the home, such (if
any) easements exercisable over any other land that is occupied by either or
both of the spouses, or either or both of them and another person, as are
necessary for the reasonable, beneficial use, occupation and enjoyment of the
home shall, subject to the provisions of this Act and to any rights of other
persons having an estate or interest in that land, be deemed to be attached or
annexed to the home, and
(b)
in addition to any easements already attached or annexed to any other land and
exercisable over the home, such (if any) easements exercisable over the home as
are necessary for the reasonable, beneficial use, occupation and enjoyment of
any other land that is occupied by either or both of the spouses, or either or
both of them and another person, shall, subject to the provisions of this Act
and to any rights of other persons having an estate or interest in the home, be
deemed to be attached or annexed to such other land.
(6) Subject
to the provisions of this Act,
subsections
(2)
and (3) shall have effect notwithstanding any limitation, covenant or condition
restricting or excluding the right of the spouse or spouses concerned to
dispose of or otherwise deal with the interest of that spouse or both spouses
in the matrimonial home concerned.
Section
5, sub-s.1
“(1) Where
the spouses concerned are entitled (otherwise than by virtue of s. 4) as joint
tenants or as tenants in common in equal shares to an interest to which that
section applies in a matrimonial home, section 4 shall not apply as respects
those spouses to the interest during the period during which either of them
remains entitled to any share in the interest.”
Section
6, sub-ss. 1 and 5
“(1) The
court may, in relation to an interest to which s. 4 applies or applied in a
matrimonial home, on application to it in that behalf in a summary manner by
the spouse who is not the spouse in whose favour s. 4 applies or, if the
first-mentioned spouse has died, by the personal representative, or by or on
behalf of a child, of that spouse, make an order declaring that –
(a)
as
on and from such date as may be specified in the order, s. 4 shall cease to
apply to the interest, or
(b) in
the case of an application by the personal representative, or by or on behalf
of a child, of a deceased spouse, that, immediately before the death of the
spouse, s. 4 shall be deemed to have ceased to apply to the interest, and, if
the court makes the order, as on and from the date or time aforesaid –
(i)
s. 4 shall cease or be deemed to have ceased to apply to the interest, and
(ii)
subject and without prejudice to the rights of any other person, the interest
in the home vested by virtue of s. 4 in the spouse in whose favour s. 4 applies
shall become and be, or be deemed to have been, re-vested in the other spouse.
(5) The
court shall not grant an application under subs. (1) unless it is satisfied
that it would be unjust not to grant it, having regard to all the
circumstances, including –
(a) any
conduct on the part of the spouse in whose favour s. 4 applies,
(b) any
failure or refusal by that spouse (having been requested by the other spouse to
do so) to contribute or to contribute adequately in all the circumstances to
the payment of amounts due under a mortgage, or as rent under a lease or other
tenancy, of the matrimonial home or in respect of other necessary expenditure
on or in relation to the home if the financial circumstances of the
first-mentioned spouse are such as to enable that spouse to make such a
contribution,
(c) the
fact (if it be the case) that, having regard to the financial circumstances of
the spouse in whose favour s. 4 applies, the application of that section to the
matrimonial home concerned enriched that spouse unfairly,
(d) if
the application is by the personal representative, or by or on behalf of a
child, of a deceased spouse, the fact (if it be the case) that an application
under subs. (1) had not been made by that spouse in relation to the matrimonial
home concerned.
Section
7, sub-ss. 1 and 2
“(1) (a)
In
relation to a matrimonial home, the spouse in whose favour s. 4 applies (or
would apply on the commencement of that section) may make a declaration in
writing that the home shall cease to be, or shall not be, a matrimonial home to
which s. 4 applies.
(b) In
relation to the intended matrimonial home of persons contemplating marriage,
the person who in relation to that home would become the spouse in whose favour
s. 4 applies may make a declaration in writing that the home shall not be a
matrimonial home to which s. 4 applies.
(2) (a) A
declaration under subs. (1) shall be void unless, before making it, the spouse
concerned has received advice from a lawyer in relation to the declaration and
its effect.
(b)
In
relation to such a declaration, a certificate purporting to be signed by a
lawyer and stating that the spouse concerned has, before making the
declaration, received advice in relation to it and its effect from the person
purporting to sign the certificate shall, without proof of the signature of
that person or that such person was a lawyer, be evidence in any proceedings of
the matters stated in the certificate.
(c) In
this subsection ‘lawyer’, in relation to advice to a spouse, does
not include a lawyer who is acting or has acted on behalf of the other spouse
or who is a member of a firm of lawyers which, or another member of which, is
so acting or has so acted and, in relation to persons contemplating marriage,
‘spouse’ and ‘other spouse’ include whichever of those
persons is appropriate in the context.”
Section
10, sub-ss. 1, 2 and 3
(1) In
this section ‘mobile home’ means –
- a
structure that is not permanently attached to the ground, or
-
(b) a
vehicle, or vessel, whether mobile or not, in which a married couple ordinarily
resided or reside on or at any time after 25 June 1993, as their sole or
principal residence and includes any rights or privileges exercisable by either
or both of the spouses over any land, being rights or privileges necessary for
the reasonable, beneficial use, occupation and enjoyment of the home.
(2) (a)
A
mobile home shall, upon the commencement of this subsection, to the extent
that, immediately before such commencement, it was owned by either or both of
the spouses concerned, belong to both spouses as joint owners.
(b) Where,
at any time after such commencement, a mobile home becomes owned to any extent
by a spouse or spouses, the home shall thereupon, to that extent, belong to
both spouses as joint owners.
(c) This
Act shall apply to any garden or other land usually occupied with a mobile
home, being land that is subsidiary or ancillary to it, is required for its
amenity or convenience and is not being used or developed primarily for
commercial purposes as if the home was a matrimonial home.
(3) Section
4 (5), 5 (3), 6, 7, 15 and 17(2) shall apply, with any necessary modifications,
in relation to a mobile home as they apply in relation to a matrimonial home to
which s. 4 applies.”
Constitutional
provisions particularly involved
The
provisions affecting the family
Article
41, s. 1, sub-s. 1
“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.”
Article
41, s. 1, sub-s. 2
“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.”
Article
41, s. 2, subs. 1
“In
particular, the State recognises that by her life within the home, woman gives
to the State a support without which the common good cannot be achieved.”
Article
41, s.3, sub-s. 1
“The
State pledges itself to guard with special care the institution of marriage, on
which the family is founded, and to protect it against attack.”
17. In
the submissions made on behalf of the Attorney General it was stated that
–
18. The
central provision of the Act may be regarded as an adjustment of property
rights within the family, which;
(a) strengthens
the family,
(b) enhances
the economic position of the dependent spouse and dependent children in
relation to the family home,
(c) recognises
the connection between family life and the home in which it is conducted, and
(d) supports
the institution of marriage, in particular the view of that institution as an
equal partnership.
19. In
short the submission made was that it was these features and these objectives
which constituted the particular aspect of the common good which was targeted
in this Bill and which justified the provisions of it.
20. The
ways in which it was asserted on behalf of the Attorney General that the Bill
supports marriage and the family was under these headings.
(a) that
it secures the family home for the family,
(b) that
it emphasised the partnership in marriage,
(c) that
it contained a mechanism which secured the interest of the wife working within
the home, and
(d) that
it provided security for spouses and children in the event of a marital
breakdown.
21. With
regard to the assertion that the Bill emphasises the element of a partnership
in marriage particular reliance was placed on the decision of this Court in
L.
v. L.
[1992] 2 I.R. 77 at p. 107 ([1992] ILRM 115) where it was stated:-
“.
. .anything that would help to encourage that basis of full sharing in property
values as well as in every other way between the partners of a marriage must
directly contribute to the stability of the marriage, the institution of the
family and the common good.”
22. This
reference was in regard to the concept of joint rights by spouses in the
ownership of the matrimonial home.
23. It
was submitted by counsel assigned to challenge the constitutional validity of
the Bill that the blanket and universal creation of a joint tenancy for both
spouses in the matrimonial home created by s. 4(2) which applied to every such
home occupied by a married couple as their sole or principal residence on or
after 25 June 1993 irrespective of when such dwelling was acquired as a
matrimonial home or what the date of the marriage of the spouses concerned was
constituted a clear failure by the State to protect the authority of the family
in breach of the guarantee contained in Article 41, s.1, sub-s. 2 of the
Constitution. This submission was based on an assertion that quite clearly a
decision made jointly by two spouses as to by whom and in what shares the
matrimonial home should be owned was peculiarly a decision to be made by them
within the institution of the family and constituted an exercise of the
authority of the family.
24. To
provide, it is submitted, as this Bill provides, for the automatic cancellation
of that decision unless it was to the effect that they should be equal joint
owners of the home, constitutes a quite impermissible invasion into the
authority of the family and a failure to protect that authority. Such a
provision it is said, goes far beyond the encouragement of joint ownership in a
matrimonial home which is a permissible objective of the common good and
constitutes a mandatory imposition of the State’s decision on this family
question to replace what in some instances will have been a joint decision of
the spouses concerned. It was conceded, of course, that in the event of this
decision-making authority being used to the detriment and oppression of either
one of the spouses or of the children that the State might well be entitled to
intervene in the interest of the common good but it was submitted that
legislation to that effect already existed in the form of the Family Home
(Protection) Act 1976 and the Judicial Separation and Family Law Reform Act 1989.
25. The
Court has carefully considered these submissions and the provisions of the Bill
and of the Constitution to which they apply and has reached the following
conclusions.
26. The
Court accepts that the provisions of this Bill are directed to encourage the
joint ownership of matrimonial homes and that such an objective is clearly an
important element of the common good conducive to the stability of marriage and
the general protection of the institution of the family. In this context it
relies upon the views expressed in the judgments of the court in
L.
v. L.
[1992] 2 I.R. 77.
27. It
is the opinion of the Court that the right of a married couple to make a joint
decision as to the ownership of a matrimonial home is one of the rights
possessed by the family which is recognised by the State in Article 41, s. 1,
sub-s. 1 of the Constitution as antecedent and superior to all positive law and
its exercise is part and an important part of the authority of the family which
in Article 41, s. 1, sub-s. 2 the State guarantees to protect.
28. The
provisions of the Bill apply the automatic ownership as joint tenants to every
instance of a dwelling occupied by a married couple on or after 25 June 1993
other than dwellings already owned equally. The interference with decisions
which may have been jointly made by spouses with regard to the ownership of the
matrimonial home effected by this universal application does not therefore
depend in any way on instances where the decision arrived at constitutes
something which is injurious to or oppressive of the interests of a spouse or
of members of the family or which constitutes a failure on the part of one of
the spouses to discharge what might fairly be considered as his/her family
obligations.
29. The
mandatory creation of joint equal interests in the family home also applies to
every dwelling occupied as a family home irrespective of when it was first
acquired by the married couple concerned and irrespective therefore of the time
at which a freely arrived at decision between them may have been made as to the
nature of the ownership and in whom it should vest. The provisions of the Bill
do not seek to apply to particular categories of cases only, or to particular
instances of the acquisition and ownership of matrimonial homes only, but
rather are applied to each and every category and instance falling within the
time scale provided for in the Bill with a right of defeasance.
30. This
right of defeasance consists in the first instance in the provisions of s. 7 of
the Bill which permit a non-owning spouse who would benefit by virtue of the
provisions of s. 4, sub-s. 2 by becoming an equal owner with the owning spouse
to declare in writing after having obtained legal advice that he/she does not
wish that the section should apply to the home.
31. In
the case of joint decisions which may have been made, possibly many years
before and succeeded by other arrangements of family assets and possessions
founded on the original agreed decision concerning the ownership of the family
home, this means that the entire matter must again be reviewed between the
spouses and that if a decision which has already existed in favour of ownership
by one of them is to be continued, that the non-owning spouse must register the
declaration under section 7.
32. In
the event that such a joint decision has been made a considerable number of
years ago, even though freely and fully agreed at that time, it may be that
upon the passing of this Bill the non-owning spouse on grounds which could be
reasonable or could be wholly unreasonable would not be willing to make the
declaration under section 7.
33. In
those circumstances s. 6 of the Act comes into operation and forces a couple
who may well have been content though not enthusiastic about the arrangements
which they had made and by which a substantial part of their married life had
been governed to become involved in the litigation contemplated by section 6.
34. In
some instances the net effect of these legislative proposals would be
automatically to cancel a joint decision freely made by both spouses as part of
the authority of the family and substitute therefore a wholly different
decision unless the spouses can agree to a new joint decision to confirm the
earlier agreement or unless the owning spouse can succeed in obtaining a court
order pursuant to section 6.
35. Having
regard to the extreme importance of the authority of the family as acknowledged
in Article 41 of the Constitution and to the acceptance in that article of the
fact that the rights which attach to the family including its right to make
decisions within its authority are inalienable and imprescriptible and
antecedent and superior to all positive law, the court is satisfied that such
provisions do not constitute reasonably proportionate intervention by the State
with the rights of the family and constitute a failure by the State to protect
the authority of the family.
36. The
Court accepts, as it has indicated, the advantages of encouraging by any
appropriate means joint ownership in family homes as being conducive to the
dignity, reassurance and independence of each of the spouses and to the
partnership concept of marriage which is fundamental to it. It is not, however,
satisfied that the potentially indiscriminate alteration of what must be many
joint decisions validly made within the authority of the family concerning the
question of the ownership of the family home could reasonably be justified even
by such an important aspect of the common good.
37. The
powers and duty of the court on the consideration of this reference are
provided by Article 26, s. 2, sub-s. 1 which reads as follows:-
“The
Supreme Court consisting of not less than five judges shall consider every
question referred to it by the President under this article for a decision,
and, having heard arguments by or on behalf of the Attorney General and by
counsel assigned by the Court, shall pronounce its decision on such question in
open court as soon as may be, and in any case not later than 60 days after the
date of such reference.”
38. The
powers and duty of the President in the event of the Court deciding that any
provision of the Bill is repugnant to the Constitution are provided by Article
26, s. 3, sub-s. 1 which reads as follows:-
“In
every case in which the Supreme Court decides that any provision of a Bill the
subject of a reference to the Supreme Court under this article is repugnant to
this Constitution or to any provision thereof, the President shall decline to
sign such Bill.”
39. It
was stated in the decision of this Court in
In
re Article 26 and Housing (Private Rented Dwellings) Bill, 1981
[1983] I.R. 186 as follows:-
“It
is to be noted that the Court’s function under Article 26 is to ascertain
and declare repugnancy (if such there be) to the Constitution in a referred
Bill or in the specified provision or provisions thereof. It is not the
function of the court to impress any part of a referred Bill with a stamp of
constitutionality. If the court finds that
any
provision
of the referred Bill or of the referred provisions is repugnant, then the whole
Bill fails, for the President is then debarred from signing it – thus
preventing it from becoming an Act. There thus may be areas of a Bill which may
be left untouched by the Court’s decision.”
40. The
Court accepts this as a correct summary of the legal consequence of the
relevant constitutional provisions. The Constitution does not vest in the court
any advisory function to the Oireachtas or to the Houses of the Oireachtas in
regard to proposed legislation other than the specific net duty of deciding on
a question referred to it under Article 26.
41. It
is for this reason that for it ‘to impress any part of a referred Bill
with a stamp of constitutionality’ would be for it to act without
constitutional authority and in disregard of the constitutional doctrine of the
separation of powers. Therefore the Court having regard to the general
constitutional importance of preventing undue intrusion by any state activity
within the institution of the family pronounces its decision that this Bill is
repugnant to the provisions of Article 41 of the Constitution.
42. The
President will be so informed.
© 1994 Irish Supreme Court
