Re The Matrimonial Home Bill, 1993

JurisdictionIreland
Judgment Date24 January 1994
Date24 January 1994
Docket Number[S.C. No. 367 of 1993]
CourtSupreme Court

Supreme Court

[S.C. No. 367 of 1993]
In re The Matrimonial Home Bill, 1993
In the matter of Article 26 of the Constitution and in the matter of The Matrimonial Home Bill
1993

Cases mentioned in this report:—

In re The Adoption (No. 2) Bill, 1987 [1989] I.R. 660; [1989] I.L.R.M. 266.

In re The Electoral (Amendment) Bill, 1961 [1961] I.R. 169.

In re The Electoral (Amendment) Bill, 1983 [1984] I.R. 268; [1984] I.L.R.M. 559.

In re The Housing (Private Rented Dwellings) Bill, 1981 [1983] I.R. 181; [1983] I.L.R.M. 246.

In re The Offences Against the State (Amendment) Bill, 1940 [1940] I.R. 470; (1940) 74 I.L.T.R. 61.

In re The School Attendance Bill, 1942 [1943] I.R. 334; (1943) 77 I.L.T.R. 96.

The Attorney General v. Ryan's Car Hire Ltd. [1965] I.R. 642; (1964) 101 I.L.T.R. 57.

The Attorney General v. Southern Industrial Trust (1957) 94 I.L.T.R. 162.

Blake v. The Attorney General [1982] I.R. 117.

Brennan v. The Attorney General [1983] I.L.R.M. 449.

Buckley v. The Attorney General [1950] I.R. 67.

C. v. C. [1976] I.R. 254; (1975) 111 I.L.T.R. 133.

Central Dublin Development Association Ltd. v. The Attorney General (1969) 109 I.L.T.R. 69.

D. v. D. (Unreported, High Court, Costello J., 16th December, 1981).

Dreher v. The Irish Land Commission [1984] I.L.R.M. 94.

East Donegal Co-Operative Livestock Marts Ltd. v. The Attorney General [1970] I.R. 317; (1970) 104 I.L.T.R. 81.

Hamilton v. Hamilton [1982] I.R. 466; [1982] I.L.R.M. 290.

L. v. L. [1992] 2 I.R. 77; [1992] I.L.R.M. 115.

Lawlor v. The Minister for Agriculture [1990] 1 I.R. 356.

McGee v. The Attorney General [1974] I.R. 284; (1973) 109 I.L.T.R. 29.

McKinley v. The Minister for Defence [1992] 2 I.R. 333.

Madigan v. The Attorney General [1986] I.L.R.M. 136.

Murphy v. The Attorney General [1982] I.R. 241.

Murray v. Ireland [1991] I.L.R.M. 465.

Ryan v. The Attorney General [1965] I.R. 294.

The State (Quinn) v. Ryan [1965] I.R. 70; (1964) 100 I.L.T.R. 105.

W. v. Somers [1983] I.R. 122; [1983] I.L.R.M. 343.

Constitution - Bill - Validity - Dwellings occupied by married couples - Beneficial interest in such dwellings to vest in both spouses as joint tenants - Whether impermissible interference by Oireachtas with rights of the family - Matrimonial Home Bill, 1993 - Constitution of Ireland, 1937, Articles 26 and 41.

Constitution - Bill - Validity - Whether Supreme Court should depart from principle that Bills referred by President attract presumption of constitutionality - Whether Supreme Court having any function to advise Oireachtas when determining constitutionality of Bill referred by President - Constitution of Ireland, 1937, Article 26.

Reference pursuant to Article 26 of the Constitution.

The Matrimonial Home Bill, 1993, was passed by both houses of the Oireachtas on the 25th November, 1993. On the 3rd December, 1993, the President of Ireland referred the Bill to the Supreme Court pursuant to the provisions of Article 26, s.1, sub-s. 1 of the Constitution of Ireland, 1937, for a decision as to whether the provisions of the Bill, or any of them, were repugnant to the provisions of the Constitution or any provision thereof. The relevant sections of the Bill and of the Constitution are set out in full in the judgment of the Court, infra.

On the 8th December, 1993, the Supreme Court assigned solicitor and counsel to be heard in argument against the constitutionality of the Bill.

Arguments were heard by the Supreme Court (Finlay C.J., O'Flaherty, Egan, Blayney and Denham JJ.) on the 10th, 11th and 12th January, 1994.

By Article 41, s. 1, sub-s. 1 of the Constitution of Ireland, 1937, the State "recognises the Family as the natural, primary and fundamental unit group of Society, and as a moral institution possessing imprescriptible rights, antecedent and superior to all positive law;"and by sub-s. 2, the State "guarantees to protect the Family in its constitution and authority".

By Article 41, s. 2, sub-s. 1, 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".

By 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".

Section 2 of the Matrimonial Home Bill, 1993, defined "matrimonial home" as "a dwelling in which a married couple ordinarily resided or reside on or at any time after the 25th day of June, 1993, as their sole or primary residence and includes any easements attached or annexed to such a dwelling and exercisable over any land".

By s. 4 of the Bill, where either or both spouses, on or after the commencement date of the Bill, was or were or became entitled to a legal or beneficial interest in the matrimonial home, a beneficial interest would vest in both spouses as joint tenants.

Such beneficial interest would not vest:

  • (a) by virtue of s. 5, sub-s. 1, where the matrimonial home was already owned by the spouses as joint tenants or as tenants in common in equal shares;

  • (b) by virtue of s. 7, where a spouse or person intending to marry who would otherwise benefit from the vesting of such beneficial interest, excluded the application of the Bill, having previously obtained independent legal advice.

Further, such beneficial interest might cease to vest, by virtue of s. 6, where, on the application of the spouse who was not the spouse in whose favour s. 4 applied, the court was satisfied that it would be unjust not to make an order declaring that s. 4 had ceased to apply to the applicant's interest in the matrimonial home.

Section 10 of the Bill made corresponding provision for the case of a home occupied by a married couple not permanently attached to land.

By s. 14 of the Bill, household chattels in a matrimonial home which were owned by either or both of the spouses would, in the absence of express agreement to the contrary, belong to both spouses as joint owners.

The Bill was referred to the Supreme Court by the President, pursuant to Article 26 of the Constitution.

Held by the Supreme Court (Finlay C.J., O'Flaherty, Egan, Blayney and Denham JJ.), in pronouncing the Bill to be repugnant to the provisions of Article 41 of the Constitution, 1, that there were no compelling reasons which would permit the Court to depart from previous decisions applying the presumption of constitutionality to Bills referred pursuant to Article 26, and nor was there anything in the present reference which could possibly make it an exceptional case so as to preclude the application of the presumption of constitutionality.

The Attorney General v. Ryan's Car Hire Ltd. [1965] I.R. 642, In re The Offences Against the State (Amendment) Bill, 1940 [1940] I.R. 470, In re The School Attendance Bill, 1942 [1943] I.R. 334, In re The Electoral (Amendment) Bill, 1961 [1961] I.R. 169, In re The Electoral (Amendment) Bill, 1983 [1984] I.R. 268, In re The Adoption (No. 2) Bill, 1987 [1989] I.R. 656 and East Donegal Co-Operative Livestock Marts Ltd. v. The Attorney General [1970] I.R. 317 applied.

2. That the encouragement of joint ownership of the matrimonial homes was clearly an important element of the common good conducive to the stability of marriage and the general protection of the institution of the family.

Dicta in L. v. L. [1992] 2 I.R. 77 approved.

3. That the right of a married couple to make a joint decision as to the ownership of a matrimonial home was one of the rights of the family recognised by Article 41, s. 1, sub-s. 1 of the Constitution as antecedent and superior to all positive law; and that the exercise of such a right was an important part of the authority of the family protected by Article 41, s. 1, sub-s. 2 of the Constitution.

4. That in some instances the net effect of the Bill would be automatically to cancel a joint decision relating to the ownership of the matrimonial home, freely made, prior to the legislation, by both spouses as part of the authority of the family and to substitute therefor a wholly different decision unless the spouses could agree to a new joint decision, or unless a court order was made pursuant to section 6.

5. That having regard to the extreme importance of the authority of the family acknowledged by Article 41, and the fact that the right of the family to make decisions within its authority was accepted by Article 41 of the Constitution as being inalienable, imprescriptible and antecedent and superior to all positive law, the Bill did not constitute reasonably proportionate intervention by the State with the rights of the family, and constituted a failure by the State to protect the authority of the family; and that the potentially indiscriminate alteration of what must be many joint decisions validly made within the authority of the family concerning the ownership of the family home could not reasonably be justified, even by such an important aspect of the common good.

6. That having reached the foregoing conclusion, the Court could not impress any other part of the Bill with the stamp of constitutionality, as it was not part of its constitutional function to do so on a reference pursuant to Article 26.

In re Article 26 of the Constitution and The Housing (Private Rented Dwellings) Bill, 1981 [1983] I.R. 181 applied.

Cur adv. vult.

Pursuant to the provisions of Article 26, s. 2, sub-s. 2 of the Constitution, the decision of the Court was pronounced by a single member.

Finlay C.J.

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 of Ireland, 1937.

The Reference

By order given under her hand and seal on the 3rd 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...

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