Private Members' Business. - Eighth Amendment of the Constitution Bill, 1980: First Stage (Resumed).
Tuesday, 3 June 1980
Dáil Eireann Debate
Dr. Browne: The reason for the introduction of this Bill is simply to permit a referendum to be carried out in order to allow the public to decide whether they are in favour of deleting Article 1.3.2 and 41.3.3 allowing for a law permitting divorce where there has been an irreconcilable breakdown in marriage. This facility is already available in the North. It is usual, where the Government opposes such a Bill, for the Opposition parties, while not necessarily supporting the principles of the Bill, in the interest of democratic parliamentary practice to permit the Bill to be at least introduced and printed and then discussed. This occurred in the Capital Punishment Bill some years ago and, of course, in the contraceptive Bill later on.
Ideally in an important issue where conscientious doubts are said to be held by Deputies both for and against the right to divorce, a free vote of the House  should be permitted. Since the right to divorce is already a part of Labour Party policy and Deputy FitzGerald has recently advocated that amending legislation in respect of and amendments to the Constitution should be introduced and the Taoiseach has equally expressed his commitment to radical constitutional changes if so requested by the Northern Unionists I hope that the discussion on this subject, the right to divorce, will at least be permitted by all-party agreement.
There is no doubt but that the legitimacy or validity of a minority civil right should not depend on the size of the minority. All of us know, however, that responsible authorities exist for the belief that changing attitudes of women to the social role in society, new stresses due to industrial and socio-economic changes have led to an increase in the breakdown of marriage in the Republic and an increasingly insistent demand for the right to divorce. Recent ESRI figures show that up to some 50 per cent of people are in favour of some form of divorce laws. Further, our failure to provide suitable housing accommodation, secure, well paid jobs and recreational facilities for children have added to the destructive pressures on family life in the Republic. Since the vast majority of the people of the Republic are members of the Roman Catholic Church, this Church while itself permitting effective dissolution of marriage and subsequent remarriage under its own annulment procedure does not favour civil divorce. For this reason I suspect that successive Governments and political leaders have failed to introduce a law permitting divorce in the Republic.
In recent years the Catholic Church has made it clear however that Catholic legislators may both advocate and enact laws opposed to their Church's teaching but considered by the legislators to be in the common good. Such, I suggest, is this proposal on the need for divorce now in the Republic. There are number of reasons, the most compelling of which are humanitarian and compassionate.  There is as well the question of our respect for Article 44 which guarantees the rights of a religious minority to their freedom to practise their religion. Concerned action by the Catholic majority now conceding this civil right to a relatively helpless religious minority would more readily establish our bona fides on the issue of genuine concern for the rights of a religious minority in an ultimately united Ireland.
Because of its consistent failure to implement the basic principles of pluralism, secularism and radicalism in our Constitution and laws I have continuously questioned the validity of Irish Republicans' claim to represent an authentic Republican philosophy. I have consistently held that Mr. de Valera's 1937 Constitution has been the greatest single impediment to political rapprochement between the peoples of the North and South. I am glad to see that the Leaders of Fine Gael and the Government party, through the Taoiseach in Downing Street and subsequently at his press conference, have conceded that radical amendments to the Constitution are now needed. I suggest that this is not a time for new time consuming commissions of inquiry since such an inquiry, the prestigious all-party Dáil Committee in 1967, have already established the need for some form of divorce procedures. There is an urgent and growing severe human problem in our society with much avoidable suffering involving adults and children alike to whom a Bill of this kind can bring badly needed help. I ask for support at least in allowing for discussion in the Dáil of the serious issues involved.
Minister for Justice (Mr. G. Collins): I have already indicated to Deputy Browne that I oppose the motion. As the Deputy is aware, recently the Taoiseach said in this House that the Government had no plans at present to promote legislation to amend the Constitution to remove the prohibition on the grant of a dissolution of marriage. It will be readily appreciated by Deputies that it would be inconsistent with that statement if we were not to oppose this motion which  seeks leave to introduce a Bill designed to do precisely that. On any issue as basic as this the Government should not be neutral but should oppose a piece of legislation for which, in their view, there is not any significant level of public support. The Government recognise and are deeply concerned about the hardship and suffering that arises for people whose marriages have broken down. However, to be in any way ambiguous about the possibility of divorce legislation would be misleading to those amongst them who might wish to avail themselves of divorce facilities in that it would hold out prospects that are unlikely to materialise.
It would also be seriously disquieting to what I have no serious doubt constitutes the majority of our people who support the constitutional prohibition on divorce. Any legislative proposal to hold a referendum would necessitate a full analysis of what a civil divorce law would entail. I believe such an analysis at this stage would only serve to demonstrate the size of the existing majority opposed to such legislation and would not serve any useful social purpose.
Finally, I should like to refer briefly to what is sometimes regarded as the related question of nullity. There is some misunderstanding on the question of nullity. It is simply not the case that the constitutional prohibition on divorce prohibits also changes in the civil law of nullity. Attempts are made to suggest that the existence of a number of annulments that are not recognised in civil law is a problem that is created and made insoluble by our Constitution. It is not. The Constitution does not prohibit changes in the law of nullity and the reasons for the problems are quite separate from the existence of the constitutional prohibition on divorce. There are, however, very complex issues involved and these were recognised by the previous Government when they referred the matter to the Law Reform Commission. That nullity and divorce are separate concepts is shown by the fact that nullity is well known to the laws of  other countries, even those which have divorce.
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