John Gormley (Dublin South East, Green Party)

I thank Deputies Ciarán Lynch and Joanna Tuffy for tabling amendments Nos. 9 and 10. Section 4 provides that where a decree of divorce or a decree of judicial separation has been granted in respect of a marriage, a residential property in which a spouse retains an interest but which is occupied by the other spouse as his or her sole or main residence will not attract a liability for the charge in respect of the spouse who does not reside there. This provision is inserted to cater for the relatively common outcome of a divorce or separation agreement where one party continues to reside in the family home but the other, although retaining a financial interest in the property, does not.

Amendments Nos. 9 and 10 seem to seek to give the same status to a separation agreement as is given to a decree granted by a court. Deputy Lynch is correct to state that I made the point in the Seanad that I have considerable sympathy with the objective of these amendments but, as before, I regret to state that I cannot accede to them. While the Labour Party amendments go further than those put forward in the Seanad in attempting to define what is a separation agreement, there remains a crucial difference between what the amendments propose and what is provided for in the Bill.

A decree of judicial separation and a decree of divorce, as referred to in the Bill, must be granted by a court but this is not the case with regard to the type of separation agreement proposed in the amendments we are discussing. As such, we would not know whether either or both parties to the separation agreement had the benefit of legal advice or whether due process generally was followed in arriving at the terms of the agreement. It seems that a court has a vital role to play in ensuring a separation agreement was entered into with the full consent of both parties and ensuring that the parties had been properly advised as part of the legal process.

I assure the Deputies that I am not opposing their amendments on the grounds that there would be a loss in revenue yield. The breakdown of a marriage is a very serious matter and one which generally brings with it a difficult and complicated process during which the parties, among other things, must disentangle their financial affairs. I do not wish to grant a form of legal recognition to this process where there is an insufficient guarantee that it has been carried out properly and with adequate regard to the principles of natural justice and any relevant legal requirements.

The drafting of section 4(4) of the Bill is grounded in precedent. I refer the Deputies to section 13 of the Finance (No. 2) Act 2000 which deals with broadly similar circumstances, but which confines itself to actual decrees of divorce and separation granted under the same statutes as referred to in section 4(4)(b). Bearing in mind this and taking account of the points I have made with regard to the uncertainty surrounding a separation agreement, I regret I cannot accede to the amendments under discussion.

I want, however, to be as helpful as possible to the Deputies and I refer them to the definition of "owner" in the Bill which is set out in section 1. Essentially, an owner is a person who is entitled to receive the rent from a property. If, as part of a separation agreement, one of the parties to the marriage will not be entitled to occupy the residential property in question or to receive any rent in respect of it , I am prepared to advise local authorities that the person should not be regarded as an owner for the purposes of the Bill. It follows, therefore, that the person would not be required to pay the charge in respect of the property in which he or she retains some financial interest but in which he or she is not either residing or receiving rent as part of the separation agreement. I will do this as part of the guidance, to which I referred previously, I intend to issue to local authorities to assist them to carry this legislation into effect.

I hope it will be of benefit to the Deputies proposing the amendments if I also undertake to contact my colleague, the Minister for Justice, Equality and Law Reform, to advise him of the Deputies' views in this matter, as this branch of law is primarily something in which his Department has the requisite expertise. As I pointed out, the provision included in the Local Government (Charges) Bill follows precedent in other legislation. Depending on my colleague's advice, I would be happy in the future to address these concerns in a suitable legislative vehicle if this is necessary or appropriate in light of what I have already undertaken to do.

See this speech in context