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.

24th January 1994

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

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26 of the Constitution, after consultation with the Council of State, referred the Matrimonial Home Bill, 1993, to the Supreme Court for a decision on the question as to whether the Bill or any provision or provisions thereof is or are repugnant to the Constitution or to any provision thereof.

Long title of the Matrimonial Home Bill, 1993

An Act to make provision in the interest of the common good, in relation to the ownership of matrimonial homes, to provide for certain other matters affecting spouses in relation to property and to provide for related matters.

Proceedings on the reference

Prior to the oral hearing counsel assigned by the Court in pursuance of Article 26 presented in writing heads of the argument intended to be made by them and submissions of law in support of such argument. These were replied to in writing by and on behalf of the Attorney General together with submissions of law on his behalf.

The oral hearing then took place before the Court on the followings days viz. the 10th, 11th and 12th January, 1994.

Summary of main provisions of the Bill

The main provisions of the Bill may be summarised as follows:—

1. 1. Where a dwelling has at any time since the 25th June, 1993, been occupied by a married couple, or becomes so occupied in the future, being a dwelling in which either or both spouses has or have an interest but which is not owned by them as joint tenants or as tenants in common in equal shares, the interest in the dwelling shall vest in both spouses as joint tenants, in the case of a dwelling occupied since the 25th June, 1993, on the date of the commencement of the Act, which is three

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   months after its being passed, and in the case of a dwelling becoming occupied by a married couple on some date in the future, on such date. [Section 1, s. 4, sub-s. 2 and section 5].

2. 2. The court may on an application made in a summary manner to it by the "owning spouse" declare after hearing both parties that the provisions of s. 4 should not apply to the matrimonial home as and from a specified date. [Section 6].

3. 3. A "non owning" spouse may by a declaration made in writing after separate legal advice declare that s. 4, sub-s. 2 does not apply to the matrimonial home. [Section 7].

4. 4. The provisions above set out in relation to a dwelling consisting of a premises apply alike to a dwelling consisting of a mobile home or boat. [Section 10].

5. 5. Household chattels as defined by s. 9, sub-s. 7 of the Family Home Protection Act, 1976, that is to say, "furniture, bedding, linen, china, earthenware, glass, books and other chattels of ordinary household use or ornament and also consumable stores, garden effects and domestic animals, not chattels used by either spouse for business or professional purposes or money or security for money" which are in a matrimonial home and are owned by either or both of the spouses shall in the absence of any express agreement to the contrary belong to both spouses as joint owners. [Section 14].

6. 6. When the interest of a spouse in a matrimonial home is a joint tenancy with one or more persons, the joint tenancy shall be severed and become a tenancy in common in equal shares. The share of such spouse in the tenancy in common shall vest in both spouses as joint tenants. [Section 4, sub-section 7].

7. 7. Where a dwelling to which a spouse becomes entitled under s. 4, sub-s. 2 of the Bill is part of a holding owned by the other spouse which extends beyond the dwelling and the ground immediately annexed thereto whether owned as a sole owner or as a joint tenant with some other person, such easements will be created pursuant to the Act for the benefit of the home as are necessary and in the case of such easements being attached as a burden on lands owned by the owning spouse and a third party the court may grant compensation for the creation of such easements. [Section 4, sub-s. 5 and section 17].

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Presumption of constitutionality of the Bill

Counsel assigned by the Court to present an argument submitted that the Court should review and reverse the previous decisions made by it holding that there must be applied by the Court to a Bill referred to it by the President pursuant to Article 26 a presumption of constitutionality.

In the decision of the Court on the reference of the  Criminal Law (Jurisdiction) Bill, 1975  [1977] I.R. 129 at p. 144, it was stated as follows:—

"In considering this Bill which has been passed by both Houses of the Oireachtas, the elected representatives of the people, the Court accepts the principles laid down by the former Supreme Court:  In re Article 26 of the Constitution and The Offences Against the State (Amendment) Bill , 1940 that 'where any particular law is not expressly prohibited and it is sought to establish that it is repugnant to the Constitution by reason of some implied prohibition or repugnancy, we are of opinion, as a matter of construction, that such repugnancy must be clearly established' - per Sullivan C.J. at page 478. This principle was accepted by the former Supreme Court in  In re Article 26 of the Constitution and The School Attendance Bill, 1942  (per Sullivan C.J. at p. 344) and  In re Article 26 of the Constitution and The Electoral (Amendment) Bill, 1961  (per Maguire C.J. at page 178). It was submitted by the opponents that the same considerations should not be applied to a bill referred by the President under Article 26 as are applied in the case of an Act which has been duly passed by both Houses of the Oireachtas and signed and promulgated by the President because the President has referred the bill after consultation with the Council of State and because a question has been raised in relation to the constitutionality of such a bill or some provision thereof. The Court does not accept that any distinction should be drawn in relation to the presumption of constitutionality between an Act of the Oireachtas and a bill referred by the President under Article 26."

This statement of principle was expressly approved and applied by the Court in its decision on the reference, pursuant to Article 26 of  The Electoral (Amendment) Bill, 1983  [1984] I.R. 273, and in its decision on the reference of  The Adoption (No. 2) Bill, 1987  [1989] I.R. 656.

The Court is satisfied that the principles it must apply to an application such as this to review a previous decision made by it notwithstanding what has been described as the judicial policy of stare decisis is to be

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found correctly stated in the previous decisions of this Court in  The State (Quinn) v. Ryan  [1965] I.R. 70 and in  The Attorney General v. Ryan's Car Hire Ltd.  [1965] I.R. 642.

In the judgment delivered by him as the judgment of the Court in The Attorney General v. Ryan's Car Hire Ltd.  [1965] I.R. 642, Kingsmill Moore J. expressly adopted and approved of the judgment of Walsh J. in  The State (Quinn) v. Ryan  [1965] I.R. 70, where, at p. 652 of the report he stated as follows:—

"In  The State (Quinn) v. Ryan,  Mr. Justice Walsh in his judgment to which the other members of the Court assented, refused to accept 'stare decisis' as universally binding in constitutional cases, adding at p. 127, 'this is not to say, however, that the court would depart from an earlier decision for any but the most compelling reasons. The advantages of stare decisis are many and obvious so long as it is remembered that it is a policy and not a binding, unalterable rule'."

The learned judge having considered the establishment and independent function of this Court pursuant to the Constitution continued at p. 654 as follows:—

"However desirable certainty, stability, and predictability of law may be, they cannot in my view justify a court of ultimate resort in giving a judgment which they are convinced, for compelling reasons, is erroneous. Lord Halsbury himself was forced to make some modification. Faced with the hypothesis that a case might have been decided in ignorance of the existence of some relevant statutory provision or in reliance on some statutory provision which was subsequently discovered to have been repealed, he suggested that it would not be a binding authority because it was founded on a mistake of fact. The same reasoning would be applicable if the decision were given in ignorance of an earlier authority of compelling validity. Where a point has been entirely overlooked, or conceded without argument, the authority of a decision may be weakened to vanishing point. In my opinion, the rigid rule of stare decisis must in a court of ultimate resort give place to a more elastic formula. Where such a court is clearly of opinion that an earlier decision was erroneous, it should be at liberty to refuse to follow it at all events in exceptional cases. What are exceptional cases? I have already given some examples of cases which I would consider exceptional but I do not suggest that these close the category and do not propose to attempt to make a complete enumeration."

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The Court is satisfied that there are not compelling reasons which would permit it to depart from the previous decisions which have been referred to and that there is nothing in the present reference which could possibly constitute it an exceptional case within the general meaning of that phrase as contained in the judgment of Kingsmill Moore J. in  The Attorney General v. Ryan's Car Hire Ltd.  [1965] I.R. 642.

The Court must therefore reject this submission made on behalf of counsel assigned to argue this case and apply to its consideration of this Bill on this reference the presumption of constitutionality to which reference has been made and would also apply if and where relevant to the provisions of the Bill the principles by way of presumption of constitutionality laid down by it in  East Donegal Co-operative Livestock Marts Ltd. v. The Attorney General  [1970] I.R. 317 which are summarised in the decision of this Court in the reference pursuant to Article 26 of The Adoption (No. 2) Bill, 1987  [1989] I.R. 656, at p. 661 as follows:—

"(1) That it must be presumed that all proceedings, procedures, discretions and adjudications permitted or prescribed by the Bill are intended to be conducted in accordance with the principles of constitutional justice, and

(2) That as between two or more reasonable constructions of the terms of the Bill the construction that is in accordance with the provisions of the Constitution would prevail over any construction that is not in accordance with such provisions."

Assertion of repugnancy to Article 41

The next issue which falls to be decided by the Court is the question as to whether the provisions contained in the Bill vesting in each spouse equal rights of ownership in the matrimonial home unless they already have these rights are repugnant to Article 41 of the Constitution.

Relevant sections of the Bill

The sections of the Bill relevant to this issue are as follows:—

Section 2

"'matrimonial home' means 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 principal residence and includes

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any easements attached or annexed to such a dwelling and exercisable over any other land;

'dwelling' means any building or part of a building occupied as a separate dwelling and includes any garden or other land usually occupied with the dwelling, being land that is subsidiary and ancillary to it, is required for its amenity or convenience and is not being used or developed primarily for commercial purposes, but does not include a structure that is not permanently attached to the ground or a vehicle, or vessel, whether mobile or not;

'spouse in whose favour section 4 applies' means the spouse who, by virtue of the operation of section 4, becomes entitled to a share, or an enlarged share, to which the spouse would not otherwise have been entitled in an interest in the matrimonial home concerned."

Section 4, sub-ss. 1-6 inclusive

"(1) This section applies to any interest in a matrimonial home, whether the interest is legal or equitable, or realty or personalty, including an interest under a tenancy agreement but excluding an interest held as trustee or licensee or the interest of a tenant under a letting made for the period of the tenant's continuance in any office, appointment or employment orbona fide for the tenant's or the landlord's temporary convenience or to meet a temporary necessity of either of them.

(2) Where, upon the commencement of this section, either or both of the spouses concerned is or are entitled to an interest to which this section applies in a matrimonial home, thereupon, the interest shall, subject to the provisions of this Act, vest in them as joint tenants.

(3) Where, at any time after such commencement either or both of the spouses concerned becomes or become entitled to an interest to which this section applies in a matrimonial home, thereupon, the interest shall, subject to the provisions of this Act, vest in them as joint tenants.

(4) The interest vesting in both spouses by virtue of subsection (2)or (3) shall be an equitable interest only in the matrimonial home concerned irrespective of whether, upon the application of the subsection, the interest in the home to which either or both of the spouses was or were entitled was a legal interest.

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(5) Where, by virtue of subsection (2) or (3), an interest to which this section applies in a matrimonial home vests in the spouses concerned, then -

1. (a) in addition to any easements already attached or annexed to the home, such (if any) easements exercisable over any other land that is occupied by either or both of the spouses, or either or both of them and another person, as are necessary for the reasonable, beneficial use, occupation and enjoyment of the home shall, subject to the provisions of this Act and to any rights of other persons having an estate or interest in that land, be deemed to be attached or annexed to the home, and

2. (b) in addition to any easements already attached or annexed to any other land and exercisable over the home, such (if any) easements exercisable over the home as are necessary for the reasonable, beneficial use, occupation and enjoyment of any other land that is occupied by either or both of the spouses, or either or both of them and another person, shall, subject to the provisions of this Act and to any rights of other persons having an estate or interest in the home, be deemed to be attached or annexed to such other land.

   1. (6) Subject to the provisions of this Act, subsections (2) and (3)shall have effect notwithstanding any limitation, covenant or condition restricting or excluding the right of the spouse or spouses concerned to dispose of or otherwise deal with the interest of that spouse or both spouses in the matrimonial home concerned."

   2. Section 5, sub-section 1

   3. "(1) Where the spouses concerned are entitled (otherwise than by virtue of section 4) as joint tenants or as tenants in common in equal shares to an interest to which that section applies in a matrimonial home, section 4 shall not apply as respects those spouses to the interest during the period during which either of them remains entitled to any share in the interest."

   4. Section 6, sub-ss. 1 and 5

   5. "(1) The court may, in relation to an interest to which section 4applies or applied in a matrimonial home, on application to it

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      in that behalf in a summary manner by the spouse who is not the spouse in whose favour section 4 applies or, if the first-mentioned spouse has died, by the personal representative, or by or on behalf of a child, of that spouse, make an order declaring that -

      1. (a) as on and from such date as may be specified in the order,section 4 shall cease to apply to the interest, or

      2. (b) in the case of an application by the personal representative, or by or on behalf of a child, of a deceased spouse, that, immediately before the death of the spouse,section 4 shall be deemed to have ceased to apply to the interest, and, if the court makes the order, as on and from the date or time aforesaid -

         1. (i) section 4 shall cease or be deemed to have ceased to apply to the interest, and

         2. (ii) subject and without prejudice to the rights of any other person, the interest in the home vested by virtue of section 4 in the spouse in whose favoursection 4 applies shall become and be, or be deemed to have been, re-vested in the other spouse.

   6. (5) The court shall not grant an application under subsection (1)unless it is satisfied that it would be unjust not to grant it, having regard to all the circumstances, including -

      1. (a) any conduct on the part of the spouse in whose favoursection 4 applies,

      2. (b) any failure or refusal by that spouse (having been requested by the other spouse to do so) to contribute or to contribute adequately in all the circumstances to the payment of amounts due under a mortgage, or as rent under a lease or other tenancy, of the matrimonial home or in respect of other necessary expenditure on or in relation to the home if the financial circumstances of the first-mentioned spouse are such as to enable that spouse to make such a contribution,

      3. (c) the fact (if it be the case) that, having regard to the financial circumstances of the spouse in whose favoursection 4 applies, the application of that section to the matrimonial home concerned enriched that spouse unfairly,

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      4. (d) if the application is by the personal representative, or by or on behalf of a child, of a deceased spouse, the fact (if it be the case) that an application under subsection (1) had not been made by that spouse in relation to the matrimonial home concerned."

Section 7, sub-ss. 1 and 2

"(1)(a) In relation to a matrimonial home, the spouse in whose favour section 4 applies (or would apply on the commencement of that section) may make a declaration in writing that the home shall cease to be, or shall not be, a matrimonial home to which section 4 applies.

(b) In relation to the intended matrimonial home of persons contemplating marriage, the person who in relation to that home would become the spouse in whose favour section 4applies may make a declaration in writing that the home shall not be a matrimonial home to which section 4 applies.

(2)(a) A declaration under subsection (1) shall be void unless, before making it, the spouse concerned has received advice from a lawyer in relation to the declaration and its effect.

(b) In relation to such a declaration, a certificate purporting to be signed by a lawyer and stating that the spouse concerned has, before making the declaration, received advice in relation to it and its effect from the person purporting to sign the certificate shall, without proof of the signature of that person or that such person was a lawyer, be evidence in any proceedings of the matters stated in the certificate.

(c) In this subsection 'lawyer', in relation to advice to a spouse, does not include a lawyer who is acting or has acted on behalf of the other spouse or who is a member of a firm of lawyers which, or another member of which, is so acting or has so acted and, in relation to persons contemplating marriage, 'spouse' and 'other spouse' include whichever of those persons is appropriate in the context."

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Section 10, sub-ss. 1, 2 and 3

"(1) In this section 'mobile home' means -

1. (a) a structure that is not permanently attached to the ground, or

2. (b) a vehicle, or vessel, whether mobile or not, 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 principal residence and includes any rights or privileges exercisable by either or both of the spouses over any land, being rights or privileges necessary for the reasonable, beneficial use, occupation and enjoyment of the home.

   1. (2)(a) A mobile home shall, upon the commencement of this subsection, to the extent that, immediately before such commencement, it was owned by either or both of the spouses concerned, belong to both spouses as joint owners.

3. (b) Where, at any time after such commencement, a mobile home becomes owned to any extent by a spouse or spouses, the home shall thereupon, to that extent, belong to both spouses as joint owners.

4. (c) This Act shall apply to any garden or other land usually occupied with a mobile home, being land that is subsidiary or ancillary to it, is required for its amenity or convenience and is not being used or developed primarily for commercial purposes as if the home was a matrimonial home.

   1. (3) Section 4 (5), 5 (3), 6, 7, 15 and 17 (2) shall apply, with any necessary modification, in relation to a mobile home as they apply in relation to a matrimonial home to which section 4applies."

Constitutional provisions particularly involved The provisions affecting the family

Article 41, s. 1, sub-section 1

"The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law."

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Article 41, s. 1, sub-section 2

"The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State."

Article 41, s. 2, sub-section 1

"In particular, 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."

Article 41, s. 3, sub-section 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."

In the submissions made on behalf of the Attorney General it was stated that -

The central provision of the Bill may be regarded as an adjustment of property rights within the family, which

1. (a) strengthens the family,

2. (b) enhances the economic position of the dependant spouse and dependant children in relation to the family home,

3. (c) recognises the connection between family life and the home in which it is conducted, and

4. (d) supports the institution of marriage, in particular the view of that institution as an equal partnership.

In short the submission made was that it was these features and these objectives which constituted the particular aspect of the common good which was targeted in this Bill and which justified the provisions of it.

The ways in which it was asserted on behalf of the Attorney General that the Bill supports marriage and the family was under these headings:—

1. (a) that it secures the family home for the family,

2. (b) that it emphasises the partnership in marriage,

3. (c) that it contains a mechanism which secures the interest of the wife working within the home, and

4. (d) that it provides security for spouses and children in the event of a marital breakdown.

With regard to the assertion that the Bill emphasises the element of a partnership in marriage particular reliance was placed on the decision of this Court in  L. v. L.  [1992] 2 I.R. 77 at p. 107 where it was stated:—

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". . . anything that would help to encourage that basis of full sharing in property values as well as in every other way between the partners of a marriage must directly contribute to the stability of the marriage, the institution of the family and the common good."

This reference was in regard to the concept of joint rights by spouses in the ownership of the matrimonial home.

It was submitted by counsel assigned to challenge the constitutional validity of the Bill that the blanket and universal creation of a joint tenancy for both spouses in the matrimonial home created by s. 4, sub-s. 2 which applied to every such home occupied by a married couple as their sole or principal residence on or after the 25th June, 1993, irrespective of when such dwelling was acquired as a matrimonial home or what the date of the marriage of the spouses concerned was, constituted a clear failure by the State to protect the authority of the family in breach of the guarantees contained in Article 41, s. 1, sub-s. 2 of the Constitution. This submission was based on an assertion that quite clearly a decision made jointly by two spouses as to by whom and in what shares the matrimonial home should be owned was peculiarly a decision to be made by them within the institution of the family and constituted an exercise of the authority of the family.

To provide, it is submitted, as this Bill provides, for the automatic cancellation of that decision unless it was to the effect that they should be equal joint owners of the home, constitutes a quite impermissible invasion into the authority of the family and a failure to protect that authority. Such a provision, it is said, goes far beyond the encouragement of joint ownership in a matrimonial home which is a permissible objective of the common good and constitutes a mandatory imposition of the State's decision on this family question to replace what in some instances will have been a joint decision of the spouses concerned. It was conceded, of course, that in the event of this decision-making authority being used to the detriment and oppression of either one of the spouses or of the children that the State might well be entitled to intervene in the interest of the common good but it was submitted that legislation to that effect already existed in the form of the Family Home Protection Act, 1976, and the Judicial Separation and Family Law Reform Act, 1989.

The Court has carefully considered these submissions and the provisions of the Bill and of the Constitution to which they apply and has reached the following conclusions.

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The Court accepts that the provisions of this Bill are directed to encourage the joint ownership of matrimonial homes and that such an objective is clearly an important element of the common good conducive to the stability of marriage and the general protection of the institution of the family. In this context it relies upon the views expressed in the judgments of the Court in  L. v. L.  [1992] 2 I.R. 77.

It is the opinion of the Court that the right of a married couple to make a joint decision as to the ownership of a matrimonial home is one of the rights possessed by the family which is recognised by the State in Article 41, s. 1, sub-s. 1 of the Constitution as antecedent and superior to all positive law and its exercise is part, and an important part, of the authority of the family which in Article 41, s. 1, sub-s. 2 the State guarantees to protect.

The provisions of the Bill apply the automatic ownership as joint tenants to every instance of a dwelling occupied by a married couple on or after the 25th June, 1993, other than dwellings already owned equally. The interference with decisions which may have been jointly made by spouses with regard to the ownership of the matrimonial home effected by this universal application does not therefore depend in any way on instances where the decision arrived at constitutes something which is injurious to or oppressive of the interests of a spouse or of members of the family or which constitutes a failure on the part of one of the spouses to discharge what might fairly be considered as his or her family obligations.

The mandatory creation of joint equal interests in the family home also applies to every dwelling occupied as a family home irrespective of when it was first acquired by the married couple concerned and irrespective therefore of the time at which a freely arrived at decision between them may have been made as to the nature of the ownership and in whom it should vest. The provisions of the Bill do not seek to apply to particular categories of cases only, or to particular instances of the acquisition and ownership of matrimonial homes only, but rather are applied to each and every category and instance falling within the time scale provided for in the Bill, with a right of defeasance.

This right of defeasance consists in the first instance in the provisions of s. 7 of the Bill which permit a non-owning spouse who would benefit by virtue of the provisions of s. 4, sub-s. 2 by becoming an equal owner with the owning spouse to declare in writing after having obtained legal advice that he or she does not wish that the section should apply to the home.

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In the case of joint decisions which may have been made, possibly many years before and succeeded by other arrangements of family assets and possessions founded on the original agreed decision concerning the ownership of the family home, this means that the entire matter must again be reviewed between the spouses and that if a decision which has already existed in favour of ownership by one of them is to be continued, that the non-owning spouse must register the declaration under section 7.

In the event that such a joint decision has been made a considerable number of years ago, even though freely and fully agreed at that time, it may be that upon the passing of this Bill a non-owning spouse on grounds which could be reasonable or could be wholly unreasonable would not be willing to make the declaration under section 7.

In those circumstances s. 6 of the Bill comes into operation and forces a couple who may well have been content though not enthusiastic about the arrangements which they had made and by which a substantial part of their married life had been governed to become involved in the litigation contemplated by section 6.

In some instances the net effect of these legislative proposals would be automatically to cancel a joint decision freely made by both spouses as part of the authority of the family and substitute therefor a wholly different decision unless the spouses can agree to a new joint decision to confirm the earlier agreement or unless the owning spouse can succeed in obtaining a court order pursuant to section 6.

Having regard to the extreme importance of the authority of the family as acknowledged in Article 41 of the Constitution and to the acceptance in that Article of the fact that the rights which attach to the family including its right to make decisions within its authority are inalienable and imprescriptible and antecedent and superior to all positive law, the Court is satisfied that such provisions do not constitute reasonably proportionate intervention by the State with the rights of the family and constitute a failure by the State to protect the authority of the family.

The Court accepts, as it has indicated, the advantages of encouraging, by any appropriate means, joint ownership in family homes as being conducive to the dignity, reassurance and independence of each of the spouses and to the partnership concept of marriage which is fundamental to it. It is not, however, satisfied that the potentially indiscriminate alteration of what must be many joint decisions validly made within the authority of the family concerning the question of the ownership of the

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family home could reasonably be justified even by such an important aspect of the common good.

The powers and duty of the Court on the consideration of this reference are provided by Article 26, s. 2, sub-s. 1 which reads as follows:—

"The Supreme Court consisting of not less than five judges shall consider every question referred to it by the President under this Article for a decision, and, having heard arguments by or on behalf of the Attorney General and by counsel assigned by the Court, shall pronounce its decision on such question in open court as soon as may be, and in any case not later than sixty days after the date of such reference."

The powers and duty of the President in the event of the Court deciding that any provision of the Bill is repugnant to the Constitution are provided by Article 26, s. 3, sub-s. 1 which reads as follows:—

"In every case in which the Supreme Court decides that any provision of a Bill the subject of a reference to the Supreme Court under this Article is repugnant to this Constitution or to any provision thereof, the President shall decline to sign such Bill."

It was stated in the decision of this Court in  In re The Housing (Private Rented Dwellings) Bill, 1981  [1983] I.R. 186 as follows:—

"It is to be noted that the Court's function under Article 26 is to ascertain and declare repugnancy (if such there be) to the Constitution in the referred bill or in the specified provision or provisions thereof. It is not the function of the Court to impress any part of a referred bill with a stamp of constitutionality. If the Court finds that any provision of the referred bill or of the referred provisions is repugnant, then the whole bill fails, for the President is then debarred from signing it, thus preventing it from becoming an Act. There thus may be areas of a referred bill or of referred provisions of a bill which may be left untouched by the Court's decision."

The Court accepts this as a correct summary of the legal consequence of the relevant constitutional provisions. The Constitution does not vest in the Court any advisory function to the Oireachtas or to the Houses of the Oireachtas in regard to proposed legislation other than the specific net duty of deciding on a question referred to it under Article 26.

It is for this reason that for it "to impress any part of a referred bill with a stamp of constitutionality" would be for it to act without constitutional authority and in disregard of the constitutional doctrine of the separation of powers. Therefore the Court having regard to the general

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[1994]	In re The Matrimonial Home Bill, 1993	328
1 I.R.	Finlay C.J.	S.C.

constitutional importance of preventing undue intrusion by any State activity within the institution of the family pronounces its decision that this Bill is repugnant to the provisions of Article 41 of the Constitution.

The President will be so informed.