Although it had been very well disguised in the manner of the drafting of the bill, any claim for “redress” under section 173 can only be discharged out of that part of the respondent cohabitant’s assets and income available to him for the support of himself and the education and welfare of his children.
Similarly, a successful claim under section 194 for “provision” out of his estate can only be satisfied out of that part of his estate that any responsible father would wish to leave to his children. In a nutshell, his wife’s share of his estate is completely ringfenced against the predations of his former cohabitant, but his children’s share will be up for grabs. Once the claimant can establish any degree of financial dependence upon her former cohabitant, the range of possible remedies open to her under the bill amount to the legal equivalent of ‘Winning Streak’ as far as the deceased’s children’s share of their late father’s estate is concerned.
The injustice of this is made even worse by the implications of section 173(3), paragraph D. This provides, that insofar as children’s rights are concerned, in determining an application for “redress” the court shall have regard only to the rights of any “dependent child” (defined in the bill as a child of both cohabitants), or of any child of a previous relationship of either cohabitant. This specifically excludes from consideration by the court the right and entitlements of any child of a subsequent or current relationship, even the children of a current marriage.
Section 173 is, therefore, not only manifestly unjust, but repugnant to the family and property provisions of the constitution in that the rights of any such child will, if the president signs this bill, count for nothing.
The same position will obtain in respect of the inheritance rights of any such child targeted by a former cohabitant of his/her father, in that section 194(4) provides that in considering whether or not to make an order for provision in favour of such a claimant out of a deceased father’s estate, the court shall have regard to the factors set out in section 173(3) which, of course, specifically excludes from consideration the rights of any child or children of a subsequent or current relationship.
It is therefore imperative that the president does not sign the bill but instead exercises her power to refer it to the Supreme Court which, I have no doubt, will declare it to be unconstitutional.
It was to this Senator Brian Ó Domhnaill was alluding when he called on Justice Minister Dermot Ahern to provide clarification as to the constitutional status of section 173(3), paragraph D during the Seanad debate last Wednesday.
The minister, of course, offered no clarification, and the relevance of Senator Ó Domhnaill’s question went completely over the heads of all the lawyer senators present, including senators Bacik and McDonald, who were both so vociferous in their blinkered support of the bill during the debate.
Lr Main Street