Ciarán Lynch (Cork South Central, Labour)

I move amendment No. 9:

In page 7, subsection (4)(a)(iii), line 5, after "granted" to insert "or separation agreement entered into".

As it stands, the section fails to recognise separation agreements and seems to put a premium on a court order or judicial separation. The Labour Party believes this is discrimination against people who are separated by agreement and that view travels well beyond the Labour Party. In legal definitions, this section would be seen to discriminate against that group. The Minister's reply to the Seanad when this issue was debated there defies logic. He stated:

The amendment does not define adequately what a separation agreement is, whether it applies in the case of a marriage or otherwise or, more generally, what standing it has in law. Neither is it clear whether either or both of the parties to the marriage had the benefit of legal advice in arriving at that agreement. It would not be known whether any element of duress was present in respect of one of the parties to the agreement when it was entered into.

Excuse me, but this does not add up. "Separation agreement" has a clear legal meaning and the phrase is used in section 49 of the Family Law Act 1996 and sections 22(2) and 24(1)(b) of the Criminal Evidence Act 1992, and in amendment No. 10 we use the definition included in section 20 of that Act. The Minister should accept this amendment. What he proposes creates a shortfall and we will end up with a test case on this matter and the legislation will be found to be legally flawed as it does not take into its scope one type of separation. If the Minister has received legal advice on this I would like him to quote it in the House because what he is proposing is at variance with the Statute books.

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