John Gormley (Dublin South East, Green Party)

I thank the Senator for putting forward this amendment. Section 4 provides that where a decree of divorce or 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.

Amendment No. 8 appears to give the same status to a separation agreement as is given to a decree granted by a court. Although I have some sympathy for the objective of the amendment, I regret I cannot accede to it. 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.

The drafting of section 4(4) of the Bill is grounded in precedent. I refer the Senator 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 this in mind and taking account of the points I have made with regard to the uncertainty surrounding a separation agreement, I regret that I cannot accede to the amendment.