Private Members' Business. - An Bille um an Deichiú Leasú ar an mBunreacht (Uimh. 2), 1985: An Dara Céim. Tenth Amendment of the Constitution (No. 2) Bill, 1985: Second Stage.
Tuesday, 18 February 1986
Dáil Eireann Debate
Mr. Taylor: In moving this Bill I want first to explain, for the record, what this Bill represents. This is a Bill to provide for a referendum. The purpose of its passage is so that the people of this country may be asked to vote on one basic question. That question is: “do you believe that the people you have elected as legislators should be able in certain circumstances to provide for the right of remarriage to couples whose existing marriages are irretrievably broken?”
It is very important that this Bill should be seen for what it is, and no more. It is a Bill which seeks to give the people the right to choose. It is no more than that. The people of this country ultimately are the only ones who can determine a change in our Constitution, and they alone have the right to make that decision. As legislators we have an obligation to place that choice in front of them, and I believe that we have that obligation now.
I should like to begin, therefore, by outlining the choice that this Bill would put in front of the people. The Bill proposes: first, that the existing provision in the Constitution, which forbids the Oireachtas from even considering legislation on divorce, should be modified; and secondly, that a new provision should be inserted that would enable the Oireachtas to provide for divorce, subject to certain vital safeguards.
These safeguards are three in number: (1) No divorce should be capable of being granted except by courts established under the Constitution; (2) No court would be empowered to grant a divorce except when it was fully satisfied that it was no longer reasonable for the two partners to a marriage to live together; (3) No divorce could be granted in any situation where the dependent spouse and children are not adequately catered for.
So the Bill proposes to place a choice in front of the people—a choice between the present situation, where this House  is prohibited from providing real and concrete remedies, even though every single Member of the House is aware of the enormous social tragedy of marriage breakdown—a choice between this total prohibition, on the one hand, and the possibility that we could provide new hope for the thousands who are trapped in hardship and unhappiness, on the other.
This Government were given a mandate from the people. Among other things, their appeal was based on a reforming outlook, a determination to bring our social fabric into the modern age, and to do away with many of the injustices and inequities of the past. The appeal of this Government also included a willingness, perhaps for the first time in our history, to legislate on behalf of all the people, subject to no denominational constraints. That appeal was summed up for many in the image conjured up by the phrase first used by the Taoiseach—“constitutional crusade”. But that crusade has faltered. A relaunch of that crusade, a decision to take our courage in our hands and break out of inactivity, could only be for the better.
In any event, the mandate this Government have is running out. Some time within the next 18 months or so this Government are going to leave office. It is not my purpose here to speculate on whether they will regain office, but it is important to make the point that there are no guarantees. Above all, there is no guarantee that a Government will exist in this country in the next ten years or more who will be willing to put the choice in front of the people.
It is clear, therefore, that by failing to move now, we may be consigning to the far distant future the hope of any progress in this area, and all the time the scale of the problem will continue to grow while the hands of the legislators remain tied.
It is not as if this Bill and this debate were descending on the House like a bolt of lightning. This subject has been debated for years. We have all heard in our time contributions to that debate  from politicians, child-care experts, victims of the present situation, churchmen, and many others. We have discussed the problem of marriage breakdown in this House. We debated it when the Constitution was first placed before this House almost 50 years ago and on many occasions since. We have debated it in the community and in the media and in the New Ireland Forum. We have debated it in this House in Committee and in plenary session. Most Deputies in this House have enunciated their positions in regard to the problem of marriage breakdown not once, but many times, and still the problem keeps growing, and still the legislators' hands are tied.
We have debated this issue within our own parties. My party have a clear and unequivocal policy position in favour of the removal of the constitutional ban and the introduction of divorce in certain clearly defined circumstances. The Fine Gael Party have, I believe, a similar policy of long standing. There is no party in this House, as I understand it, who have adopted a contrary policy stance, and no party who regard the Constitution as imperishable and unchangeable. Yet the problem keeps growing and still the legislators' hands are tied.
In my view, it is no longer accurate to say the time has come for action. It is past the time. The people of this country should have been consulted long before now on this question. We must accept, I believe, that the time for excuses is past. Even if, as I hope it does, this Bill passes the Second Stage, it will be many months, and much detailed discussion will take place, before it leaves this House. It must then go through a further process in the Seanad before, finally, the people are asked to make the choice. All we are asking for now is that we make a start.
It has been implied that moving this Bill — even voting on this Bill on Second Stage — in someway pre-empts the necessity for, and the possibility of, further consultation, particularly with the Churches. I want to make two points in relation to this: first, it is clear from what I have said already that I do not believe that further consultation is necessary.
 However, I believe that there is nothing in what we are doing which precludes the possibility of any further negotiation or consultation that any see as desirable. Nor is there anything in what we are doing which necessarily pre-empts the outcome of such consultations. I should like to elaborate on these two points, first, the question of the necessity for further consultation.
It is normal in any democracy — and right that it should be so—that those who have an interest in any situation should be consulted when change is proposed. The process of change is always going to be more successful and beneficial when those who are likely to be affected by change are persuaded that change is right and necessary.
I believe that where this question of marriage breakdown is concerned, the Churches, who act as agents of the State in respect of many marriages, must be consulted about the implications of proposed changes for their role and functions. They are not alone in this. Many other agencies and individuals, particularly those who come face to face with the consequences of marriage breakdown, would have a great deal to offer in any consultative process also.
These consultations have, in fact, already taken place at great length both in the New Ireland Forum and before the joint committee. To repeat these consultations yet again gives rise to the suggestion that nothing more is intended other than a delaying tactic.
What we are asking the House to do in this Second Stage debate is to decide in principle that legislation is necessary to give the people a choice. This brings me to the second point I made about the process of consultation, namely that, whether or not I believe it is necessary, I do not believe there is anything in what we are asking the House to do which would preclude or pre-empt consultation.
The process on which we are embarked in this debate is a very particular one under the Standing Orders of this House. Unlike normal legislation, this Bill, if it passes Second Stage, will be referred to a special or select committee.
 In other words, if the House agrees to Second Stage, the House will be deciding in principle that some legislation in this area is desirable, and the House will further decide that it will be a matter for a special committee to decide the final shape of that legislation. I understand that that committee could be an existing committee, such as the Committee on Legislation; or a committee established especially for the purpose; or indeed, a committee of the whole House. It will also be a matter for the House to decide when and how often that committee should sit, and for how long.
I want to give this solemn assurance to the House: we are seeking the maximum support on Second Stage, and in return we will facilitate the work and deliberations of that special committee to the maximum possible extent.
Indeed, we would welcome the fullest possible deliberation of this whole issue in such a committee. We do not regard ourselves as possessing the only truth in this matter. For example, it may well be that Deputies would like to see further safeguards written into the legislation— there could be no better opportunity than the work of such a committee for this exercise.
Furthermore, we see no reason why the work of that committee could not be undertaken in parallel with any consultations that were taking place outside the House—such overlapping deliberations would inform each other, rather then pre-empt each other. The consequence, I have no doubt, would be better legislation, to which every Member of this House would have an opportunity to contribute.
I would ask the House to remember this—we are not in a position, because we are a relatively small number of Deputies, to curtail any debate in the House on this Bill. A Government with an overall majority can take the view that it will only accept amendments that suit it; but from the perspective of the whole House and of individual Deputies, it is one of the virtues of our minority position that we are dependent on Deputies' support. Therefore each Deputy has a guarantee  that his views must be taken seriously into consideration in arriving at a completed Bill.
So, not only are we not precluding consultation; we are guaranteeing that the views of every Member of this House will carry equal weight, no matter how those views might be informed. The legislation that will emerge from this process will, in so far as we can ensure it, reflect a consensus of the House on this widespread social problem. I turn now to the need to deal with marital breakdown. It would be possible, in the circumstances that have surrounded this whole issue, to conduct this debate entirely about politics, tactics, and the like. To do so would be to forget what the debate is about. This Bill sets out to deal with a human problem of enormous proportions, and it is that human problem I now wish to address.
The problem of marital breakdown and its consequences has been inadequately documented in our society. It is a problem that has long been side-stepped, and the result is that there is no one in this House who can place before us all the relevant statistics, so as to put beyond any doubt or discussion, the scale of the tragedy and the urgent need for remedy.
Why should this be so? Why should this be the only country in the developed world where there is no accurate and reliable index of such a troubled issue? In part, no doubt, it has to do with the kind of society we are, a society where the importance of marriage as a symbol of one's place in society has always been real. In part, of course, it has to do with the Judea-Christian ethic which rightly lays great stress on the permanence and sacredness of marriage.
In part, too, there has been fear of this whole subject — a fear that even the admission that marriages do break down will lead in some way to the undermining of the family and to the beginning of the end of society.
So I cannot say that there are 50,000 or 100,000 families suffering from marriage breakdown. The definitive statistics are simply not available. But I can say that  the number of such families is large and that it is growing, and that the consequences involve pain, suffering and hardship for a great many people.
We have the evidence, after all, of the many experts who testified before the Oireachtas committee. We know the experiences of the individuals and groups who work on a day-to-day basis with families in distress. We know the views of the pressure groups campaigning for change.
But when it comes down to it, we do not need all of this information, because everyone of us in this House knows of the problem. We meet it every day in our clinics, in our contact with ordinary people, in our constituencies and among our friends and relatives.
We may not have definitive statistics on the number of people whose spouses have divorced them abroad and remarried, but we have all seen it happen. We may not have definitive statistics on the number of women and indeed men who have been deserted and have been made dependent on inadequate levels of social welfare, but we have all seen it happen. We may not have statistics on the number of people who have been subjected to violence, both physical and mental, by their spouses, or how many women have needed medical care as a result; but we know it happens. We may not have statistics that tell us the exact number of children who are brutalised as a result of violence from one or other parent, but we know it happens. We may not have statistics that tell us the number of homes that have been wrecked by alcoholism, by cruelty, by brutality or by sheer daily misery; but we know it happens.
Opponents of divorce in any circumstances often refer to the alleged adverse affects of divorce on the children. However current research from developmental psychology indicates that more damage is done to a child who is reared in an atmosphere of conflict, than to a  child who experienced a stable relationship with at least one person. Research has also shown that it is advisable in considering the mental health of a child to terminate a sick relationship rather than perpetuate it.
As legislators, we know too the many anomalies in our present law which give rise to the hardship and injustice. The major anomaly concerns the area of nullity and illegitimacy. The courts have recently developed a slightly more liberal trend in broadening duress as a ground for nullity of marriage. This liberal trend derives from the constitutional prohibition on divorce. In a recent Supreme Court judgment, Mr. Justice Henchy conceded that non-viable marriages have on occasion been declared null on a humane interpretation of the doctrine of duress. It seems clear that the absence of a divorce jurisdiction has led the courts to try to extend the law of nullity instead.
This is clearly unsatisfactory. The burden of law reform should rest squarely here in this House. We will just have to put aside the sham and the fiction once and for all and recognise the fact as the Irish Law Times editorial points out this month that “the quality of matrimonial relationships is a matter which falls primarily within the province of divorce”— not nullity.
The “humane interpretation” of the courts referred to by Mr. Justice Henchy has not unfortunately until now been reflected by humane legislation in this House on this issue. However, the House does have an opportunity in this Bill — probably a last opportunity for a long time — to take the first tentative steps towards redeeming this situation.
We know that without the possibility of divorce there are thousands of people trapped in hopeless situations. All of the changes that we want to make, in situations where nullity is concerned, and in relation to illegitimacy, are hollow unless we are prepared to tackle this one major issue.
All of us in this House, share a commitment to parliamentary democracy. All of us share experiences of social realities. We are all familiar with the existence of  injustice: all motivated by an awareness of hardship, of poverty, of inequality and of lack of opportunity. Therefore we must each accept that our task as legislators is to work for the removal of these injustices. We must do so whether or not those who are affected by injustice are Catholic, Protestant, Jew, or of another denomination, or of no denomination.
We must do so while protecting the right of individuals to follow the dictates of conscience. The Churches always have, and must always have, the right to inform conscience, to guide and to lead individuals in the exercise of that conscience. We cannot interfere in that process because by doing so we would be removing a basic human freedom. Thus, nobody in this House could, or should, be under any illusion. The solutions that we propose to any social problem must be compatible with the needs of individual conscience.
We do not propose this Bill on the basis that divorce is desirable. Divorce is no more desirable than broken marriage. Of course, we would all prefer a situation where the consideration of divorce was unnecessary, where marriages never died, where the stresses and strains which can lead to crisis in families never arose but to believe that the situation is the way we want it to be is to delude ourselves. Marriages do die, irretrievably and irrevocably and the consequences of that must be faced.
It has been said before, and I believe it is worth repeating, that divorce bears the same relationship to marriage as a funeral does to a death. I do not believe that the mere existence of divorce is likely to increase the incidence of broken marriages but I do accept that without care a situation could arise where because divorce is too convenient marriage itself could become a convenience. We have to take care to avoid this. If we accept, as we do, that the family is a vital and fundamental unit in our society, we must protect it but not by forcing people to live together who can no longer reasonably be expected to live together and who have not lived together for years. We are not protecting the family by trapping people  in situations where poverty, hardship and violence are daily realities.
The word “family” is much discussed in the context of the Constitution and the debate on marital breakdown. We should analyse what we mean by this word. Taking a typical situation where a couple has separated and one or both have formed permanent and stable relationships with other people — perhaps having children of this second union — which is the “family” that we seek to protect or validate? Is it the original marriage — obviously finished forever — or is it the one or two permanent and long term relationships subsequently established and enduring?
In my view the need to protect the family is entirely compatible with a carefully prepared approach to divorce. Such an approach would only allow divorce within certain parameters and it would inevitably place a heavy burden on those seeking divorce to show that their case falls within those parameters. The grounds on which divorce could be granted would have to be stringent and I would hope that as this debate develops it would be possible to reach a consensus among us on what those grounds should be.
We cannot continue to ignore a reality which I believe is ignored by those who argue that any divorce law would open up the floodgates. That reality is that even though we have never permitted divorce we have never been able to prevent the death of marriages.
We are all, of course, aware of the argument that the availability of divorce legislation undermines family life and consequently hits at the moral and social fabric of society. In fact divorce itself is not the cause of these problems, though it may be the end product of marital breakdown. The nearest divorce jurisdiction is in Northern Ireland and an examination of the divorce statistics there shows that the availability of divorce there has not caused any significant undermining of family life in Northern Ireland. Over the past four or five years  the number of divorce decrees granted shows a slight decline.
In moving this Bill we are arguing that the time has come to place a choice in front of the people. The choice we are proposing can be summarised this way: we believe that the people should be offered the opportunity of removing the present total ban on divorce from the Constitution and replacing it with certain safeguards within which the Oireachtas would be empowered to legislate for divorce.
We are arguing also that this Bill is timely, indeed that is past time, because the incidence of marriage breakdown is such that we are dealing with a major human tragedy. Thousands of people, adults and children, are trapped within marriages that have long ceased to be anything but vehicles for hardship and suffering.
We believe that if we fail to act now the opportunity may not exist again for many years. We believe also that there is an expectation that this Government will have the courage to do what has not been done—to lead and develop the debate, so that public opinion will have confidence in a careful and caring solution.
We have argued that the moving of this Bill can result in the establishment by the House of a special committee to finalise the shape of legislation and that we would welcome and co-operate with such a development. For that reason, we do not believe that we will be pre-empting any consultations considered necessary outside the House. We believe that it is possible to legislate in this area without infringing the right of private conscience and we do not accept that legislation which is carefully constructed would damage the family.
The moving of this Bill places the debate about marriage breakdown in a concrete context. Many, if not most, of the Members of this House have set out positions in the debate but so far that debate has been conducted in an abstract way. I appeal to every Member over the next week to consider carefully the arguments for supporting this Bill. The  hardship that marriage breakdown generates can no longer be ignored and the right of the people to this referendum must be paramount.
Dr. Woods: A proposal to amend the Constitution is a very serious matter with grave and long term implications for the people as a whole and for society. For this reason referenda to amend the Constitution are prepared by a Government only after mature and responsible consideration. Fianna Fáil are not opposed to the holding of a referendum on divorce but this must be done following a Bill sponsored by the Government as a whole. We will give constructive consideration to any mature and complete proposals when the Government bring them before the House. We will then as a party take a responsible and caring decision on this matter.
The Labour Party amendment does not have the support or authority of the Government of which they themselves are an integral part. The wording in their Bill is vague, uncertain and inadequate. It would provide for divorce on demand and would offer only a token gesture towards dependent children, with no real protection for them. The first family could become a constitutional orphan stripped of family rights. It is outrageous that the Labour Party who share in Government should abuse Private Members' time for such an important question. It highlights their frustration with the Taoiseach and their other Cabinet colleagues when they resort to such cynical backroom tactics as this. It is clear that the Taoiseach is dragging his feet on the referendum which he promised. He is attempting to sit on two horses as they struggle to go in different directions. Both the Oireachtas and the people deserve a more responsible approach by the Government to such an important social and constitutional question.
This Bill to amend the Constitution is presented by the Labour Party and put forward in Private Members' time because it did not have the support of the  Government of which the Labour Party is an integral part. The extraordinary and somewhat ridiculous situation places the Opposition——
Dr. Woods: ——in an unprecedented position. The Labour Party have obviously not been able to convince the Government that this Bill is worthy of support, yet they seek to usurp the function of the Cabinet and place their divorce Bill before the House. We know that the Labour Party have a controlling interest in this Government and can enforce their will on the Government if they so wish. Only last week the Taoiseach had to capitulate when a Labour Minister usurped his constitutional function and insisted on having his own way. The Minister for Health, Deputy Desmond, with the support of the Tánaiste and Labour Party Leader, Deputy Spring, forced the Taoiseach to comply with their wishes where the placement of the Minister, Deputy Desmond, was concerned. Could the Labour Party not have done the same with such a major constitutional proposal? Would the Taoiseach not have been forced to support such a Bill at Government level and to consider seriously its framing and implications? There can be no doubt that if the Labour Party had pressed their Bill at the Government table the Government would have had to accept it or face an election. Do the Labour Party believe in their own Bill or is it presented just for the cosmetics and media kudos? It is evident that they do not believe in it and the House is being used purely for the purpose of hypocritical posturing and publicity. If the Labour Party and the Government think that they can gain media kudos and popularity by playing ducks and drakes with this issue, they must have a very low and cynical regard for the media. I do not believe that the media will fall for such cynical tactics designed to throw a smokescreen over Government vacillation and indecision.
The Labour Party's role in presenting this Bill on such a major constitutional  issue in Private Members' time is therefore less than honourable. If the Labour Party had the political conviction to put this Bill before the Government then it would have had to be considered seriously by the Government before being presented to this House. They have shown a lack of commitment to their Bill and a lack of faith in the Cabinet by the manner in which they are proceeding. Deputy Taylor made it quite clear that he was not particularly convinced of the suitability of the process being used in Private Members' time and he tried to impress on us all that if we accept this as merely introducing the Bill in principle we can all agree that it should go to a select committee. Debate at a select committee would be limited to a Committee Stage debate and would lack the adequate discussion and presentation of views which can take place in this House in the normal process of a Bill. In the circumstances it is impossible for the public, let alone the Opposition, to establish where the Coalition stand on this question——
Dr. Woods: ——and to respond accordingly. Fianna Fáil are not opposed to the holding of a referendum on this important question. We regard it as a major constitutional matter which deeply affects the lives, Welfare and common good of our people. Accordingly we want to see the Government's proposals to amend the Constitution so that we can put forward our constructive and considered views on the Government proposals. It was in this spirit that Fianna Fáil supported and participated in the work of the Oireachtas Joint Committee on Marriage Breakdown. This committee gave serious consideration to divorce and to the whole complex area of marriage and the protection of family life in modern society. The Government, having had the introduction of divorce as part of their election programme, said they wished to await the report of the  joint committee before bringing forward their own Bill to amend the Constitution. We gave our total commitment to that committee and the Government received their comprehensive report almost a year ago in March 1985. The Government made a great deal of play about the urgency of getting this report so that they could proceed with their plans to draft and prepare the wording of a constitutional amendment. Nevertheless, after further manoeuvring the Government wanted a debate in the Dáil on the report before any decision was taken on it. That purposely prolonged debate concluded last month. The Taoiseach now says that he wishes to become involved in a process of discussion and consultation before bringing forward his proposals. Even this process has not begun yet. Deputy Taylor said that in his view there had been enough discussion and sufficient presentation of views through the New Ireland Forum and the joint committee. Views are well known but still the consultation process is what the Taoiseach puts before us and even this process, we understand, has not yet begun.
So far the Government have failed to live up to their responsibility and produce their own proposals. If a referendum is to be held the people must have an opportunity to consider all the issues involved, including the nature and extent of the proposed changes, both constitutional and legislative. In such circumstances it is incumbent on the Government, with all the legal and other resources at their disposal, to produce an appropriate provision for amending the Constitution, along with detailed legislation setting out the scheme under which the law would operate. This is necessary to give the people a full understanding of the choices and the decisions they have to make. Deputies on all sides of the House agree that the people should be given a full and clear understanding of the choices and decisions they would have to make. These should be set out, debated and discussed.
The wording of a Government proposal would be crucial. It would propose  to amend the Constitution for the foreseeable future. This would have a major impact on future legislation in this area. It would affect family rights profoundly and would be interpreted by the Supreme Court over the years to come. In our view, therefore, it must be afforded the whole process of debate in the Dáil and in the Seanand. It is not sufficient to put a Bill of this kind into Private Members' time with the limitations which apply there and even to suggest then that there would be a very open approach on Committee Stage, because we would be limited in a Committee Stage debate in any event at that time. What is important at this stage is that the Government with their law officers and the experience they have in the whole area of preparation of legislation and in the social area should give their attention to the wording of the proposed amendment. I do not criticise Deputy Taylor and his colleagues for coming up with some form of amendment of their own. I know they have not available to them the full legal backup, support, drafting and consideration which would be available to the Government in dealing with such a measure.
This measure must, therefore, be afforded the full process of debate in the Dáil and the Seanad. That is why we say that the Bill is inappropriate. We are presented with a Labour Party Bill cobbled together in some party backroom and introduced into the Dáil by the back door of Private Members' time which is totally inadequate from a Government party who seek serious consideration of such a fundamental proposal to amend the Constitution.
The Labour Party Bill now before the House lacks the benefit of the advice available to the Government and the whole legal and social analysis which normally preceeds the presentation of such an important measure in Dáil Éireann. This creates a further difficulty for the Opposition in that the Bill has not the certainty or authority of a Government measure. Yet it is presented by one of the Government partners without the application of these normal and rigorous legislative standards and tests. In these  extraordinary circumstances it falls to the Opposition to raise some of the questions which must be asked about the Labour Party's Bill to amend the Constitution.
The amendment is drafted in such broad terms as to permit the introduction of divorce on demand and also the provision of quickie divorces. Even those who campaign for divorce in Ireland agree that they want protection against such a development. The Oireachtas joint committee were unanimously opposed to such an outcome. Consequently the wording of the proposed amendment would have to be such that it would prevent that situation from developing. That was seen to be the view of all those who seriously considered the need for a referendum and for change in this area but, as we see it, the present proposals have that defect.
The language of the draft Bill is such as to permit one of the partners to a marriage to terminate a marriage unilaterally for the worst of motives notwithstanding the wishes of the other party to the marriage or the adverse effects on dependent children. The drafters of the Bill by leaving Article 41.1.1º in place, which gives the family “inalienable and imprescriptible rights, antecedent and superior to all positive law”, and by repeating Article 41.3.1º, which describes the family as an institution based on marriage, in the text of the proposed amendment have provided that the powerful protection given by Article 41.1.1º to the family, where a real marriage follows a divorce, must be taken away from the first family and given in its entirety to the second family. In other words Article 41.1.1º, which should be a protection for the first family, becomes an instrument for their oppression. The benefits that flow from Article 41.1.1º are withdrawn and switched to the remarried family or families.
The State discharges its obligation under Article 41 to the first family in a variety of ways. These include the benefits of being married, for example, in social welfare legislation, in succession and in the tax laws. The family in question is the family based on marriage and, since  the first marriage is to be dissolved the benefits go to the second family, and the first family then have no constitutional rights under Article 41. They will depend on the goodwill of the Government of the day. Indeed, Deputy Taylor pointed this out to us when he said it should be left in the hands of the legislators of the day.
The first family becomes, therefore, a constitutional orphan even if the State were disposed to be evenhanded in its treatment of the first family. Members of the second family could with the backing of the Constitution make claims for priority or perference over and against the first family since the inalienable and imprescriptible rights would be transferred to the second or subsequent families. The Labour Party have left this very strong protection for the family in the section on the inalienable and imprescriptible rights. Article 41.1.1º of the Constitution provides that:
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.
That is left in this amendment proposal but, at the same time, the family is still described as the family based on marriage. Therefore, those rights would transfer to the family based on the remarriage.
The Labour Party's Bill does not provide protection for the children. It provides only a token gesture towards the children by stating that the interests of dependents must be satisfied “in so far as is just and practicable”. Thus the children would become pawns in post-divorce negotiations. The proposed amendment clearly subordinates the rights and welfare of dependent children of a marriage to the right of either of the parents to a divorce, notwithstanding that this may be brought about solely by the unilateral wish or misconduct of one of the parents. Provisions like this have been included in  divorce legislation in most other jurisdictions and have proved to be useless as a protection for children against the irresponsibility of one or other parent who is determined to bring the marriage to an end.
This is so in this Bill because clearly the right of one parent to a divorce prevails over the right of the other spouse and their children. It is noteworthy that in Britain and the US most dependent children of dissolved marriages end up on social welfare. We would like the Government in coming forward with proposals to try to tackle this problem which is known to exist elsewhere and try to come up with wording and phraseology which will provide better protection for the children than we see in other jurisdictions, and in our view this has not been done in this Bill.
Last Sunday the Tánaiste said on radio that under this proposal divorce would not be granted to one party unless there was adequate protection for the interests of the other spouse and children. For the reasons I have outlined this comment is ill-informed and misleading. The amendment clearly intends that divorce will be granted and these interests protected so far as is just and practicable only. Our advice is that if it is not practical to protect their interests, then divorce as contemplated in the amendment will proceed leaving the spouse and children unprotected. The text of the proposed amendment is vague and inadequate. It refers to the breakdown of marriage without defining it. This is a vague concept unknown to the law and lacks any legal meaning. In the context of marital difficulties, it has no meaning which would enable a clear constitutional interpretation to emerge. The drafters of the Bill must themselves lack confidence in its meaning. They include the term “clear breakdown of marriage” as if this gave some added meaning to the term.
The proposed Bill also offends against the principle of private international law whereby dissolutions of marriage granted in a foreign country to persons domiciled in that country are recognised within this jurisdiction. Under our present law, a  marriage which has taken place here may be dissolved in accordance with the laws of a foreign country if the parties to that marriage are domiciled in that country. If the Labour Party amendment became part of the Constitution, such dissolutions would no longer be recognised under Irish law. This is a typical example of the kind of deficiency that can arise when amateur and hamfisted attempts are made to change a law as fundamental as the Constitution.
These are some of the more obvious criticisms and limitations of the Bill. Taken as a whole, the Bill is an inadequate and incomplete response to this important constitutional question. If the people are to be asked to decide whether divorce should be introduced, then this is not the way to do it. Have the Government even asked the Attorney General to advise them on the implications and wording of this amendment? If so, what are his views and if not, why not? This leads me on to ask the Taoiseach to state the Government's view on this Bill as arrived at in accordance with the principle of collective responsibility enshrined in the Constitution. He may have to confess to this House that the Government have no view. If so, this demonstrates the very shoddy level to which Government have come. It must be unprecedented in the history of the State for a Bill which proposes to amend the Constitution of that State to be debated in the Dáil without the Government submitting their considered view of the position. It demonstrates the Government's contempt for their own constitutional function, for Dáil Éireann and, ultimately, for the people as a whole.
The proper way to exercise the responsibilities of Government is not to introduce inadequate legislation, however well intentioned, through the back door. The Government as a whole should make a decision whether a referendum should be held. If so, they should bring comprehensive proposals before the Oireachtas. We in Fianna Fáil will give constructive consideration to any mature and complete proposals which the Government bring forward. We will seek  to promote public debate on such proposals in a positive, caring and responsible manner. We will do this with a view to establishing and promoting the common good in this important area. Indeed, in that context I would refer to Deputy Tayior's comments emphasising just how important this matter is to the people at this time, how important it is that it be considered and that an adequate proposal would be prepared. He does not claim that this wording is the most suitable and in that respect I would have to agree with him. The process for doing this is for the Government to come forward with their Bill even at this late stage. I know that Deputy Taylor and the Labour Party members — who are here in great numbers tonight for this Bill—are quite worried that, as Deputy Taylor said, Government time is running out. The Deputy is concerned that the Government may not be prepared to go ahead with an amendment. If he is, I would suggest that he get his party Leader and the other Members representing the Labour Party to go to the Cabinet and demand that a wording prepared by the Government be brought before the House in the near future.
As I have said, we are not opposed to the holding of a referendum but a whole year has gone by now. Look at all the criticism which the Government heaped on the joint committee for what they regarded as delays in reaching their decisions and in bringing forward their full report. This work was done in very good time, given the complexity of the matters before the committee and the fact that the first six months were lost by virtue of the staff not being appointed to the committee, in any event. Leaving all that aside, the committee, in which we participated fully, did their work and brought their report before the House. That report has been with the Government for almost a year. Surely they have had time to prepare a suitable wording?
When the Government asked us to come and spend week after week here discussing and debating the report, we came and gave our views. I then pointed out that the joint committee considered  that they had neither the expertise nor the time to draft a referendum proposal. It was the all-party view at that time that this was a matter which required the expertise of the law officers and the drafting facilities and support which a Government have in putting forward a suitable referendum wording which would go as far as it could to meet the requirements envisaged by Members in the House when they spoke on both sides during that debate and by the views which have been expressed outside the House. It is the task of the Government now to come up with this wording. I pointed out then that it was seen as a task for the Government, with their legal back-up and constitutional expertise. I said that the next step was for the Government to take, that they must now prepare the proposed wording for the referendum which they are recommending.
We, as the Opposition, await that wording. We have said that it must make clear two things—first, the nature and extent of the constitutional amendment which they propose and the degree of protection which would be left for the family and, secondly, the form of divorce legislation which the Government have in mind following a referendum. These must be set out clearly for the people in advance, so that they can be debated openly, not by any slipshod or half measures. However frustrated the Labour Party may be in the present position in Government, that is not an adequate way to come before the House with a proposal to amend the Constitution.
There were, as has been pointed out, a number of areas in which the committee had unanimous support and agreement. These were matters like mediation services, a family court, updating of the law on nullity and on legal separation and a whole variety of other things. These should have been under way and could have been from last March. They, too, would have the full support of the Opposition. We would come constructively to meet the Government on these matters. As I have pointed out, this is a matter which calls for responsibility, concern  and caring on the part of Members on both sides of the Houses. It was very clear that these matters should be installed and in place and operating before divorce legislation would come into operation. That was clearly the intention of the joint committee and they were very explicit about that.
I have set out as clearly as I can our position in relation to this Bill. We are not against the holding of a referendum in this area, but want to see the Government's proposals. We will give them full, responsible and very caring consideration, once they are put on the table.
Minister for Justice (Mr. Dukes): This Bill is a Private Members' Bill brought forward under a procedure provided for in the Standing Orders of this House. For Deputy Woods to suggest to this House that this is in any way unprecedented or contemptuous of debate or of the people seems to me to be a scandal.
Deputy Woods said a few moments ago that the opposition found themselves in an unprecedented situation. I asked myself what is unprecedented about a debate on a Private Member's Bill under procedure provided for in the Standing Orders of the House? What is unprecedented about a situation in which Members of this House are faced with the issue of making up their minds on how to go about dealing with that issue? I can see nothing at all unprecedented in that. Neither can I see anything unprecedented in the reaction of Deputy Woods to it. He has followed his usual line: when you meet an issue with a choice to be made, you throw a few platitudes at it and lob in a few innuendoes for good measure, like his use a few minutes ago——
Mr. Dukes: ——of words like “slipshod”, going tiptoes through the tulips, throwing out little innuendoes here and there, carefully saying nothing at all  about the issue except that he finds it unprecedented that we should be discussing an issue of this kind in the House.
Mr. Dukes: If Deputy Woods finds that unprecedented he must have been asleep for more years than I have been a Member of this House. I had not intended to make remarks like that in the context of this debate but I confess to having been prompted by the waiting tiddler over there in that approach to this.
I agree with a great deal of what Deputy Taylor has said and a great deal that is in his motivation for doing this. But I oppose this Bill not because I believe we should not have a referendum but because I do not think, for reasons I will outline in a moment, that this is the moment for us to be discussing a Bill of this kind in the House. For some time we have been conducting a debate on an issue that is of very considerable importance and we ought to be sure that we have examined the issues fully.
Deputy Taylor said we do not have statistics that would allow us to grasp the full extent of the problem we are talking about. The joint committee pointed this out. We do not know the full extent of the problem. We know what the problem is, we know what is behind it, we know there are people behind that problem who suffer in many different ways, as Deputy Taylor said, emotionally, physically, economically in many cases. I do not think there is a Member of the House who can be unaware of the existence of that problem. If there is, that Member must be in a very privileged or isolated position. We see the different manifestations of the problem, and it is very unsatisfactory for many of us here that we have not yet defined a way to deal with it.
I am sure of one thing: we will not define a satisfactory way to deal with this if we embark on another trip or attempt to find an Irish solution to an Irish problem, as has been tried on previous  occasions. This is one of the most important social questions to engage the attention of the Irish people and this House for some years. It raises fundamental questions about our attitude to marriage, which is recognised by our Constitution as the fundamental unit of our society.
It has been our tradition, for reasons adverted to by Deputy Taylor, to regard marriage as a union entered into for life. It is fundamental to our general view of things. It has been fundamental to the way we have organised our society; and the question posed by this Bill and by similar proposals is whether we should modify our attitude on that basic issue. There are sharply divided opinions on it and it will not be enough for us to seek a consensus in this House: we have to seek a far wider consensus.
I do not say — it is the very thing I do not want to say — I am not suggesting that we should refuse to contemplate any change, but the nature of the issue imposes a very heavy obligation on all of us to inform ourselves as fully as possible of the implications of what is being proposed so that we will be able to satisfy ourselves whether proposals for change should be put before the people, and second, if they should be put, what proposals they should be. That concern, which I hold very deeply, is in keeping with those outlined by Deputy Taylor.
The joint committee made a substantial, notable contribution to the debate. I do not think any member of the joint committee would claim any particular literary elegance for the report, but it is an extremely comprehensive report dealing with all of the issues arising. They laid great stress on the issue that divorce is only one aspect of a much wider subject. Therefore, the committee members addressed themselves to various causes of marriage breakdown, to methods by which the institution of marriage may be protected, to methods by which the people involved may be protected, and to the various legal remedies, including divorce, though not solely concentrating on divorce, by which some alleviation of the problems caused by marriage breakdown may be achieved.
 The committee recognised the diversity of the problems and their acuteness for the people involved. They considered the whole area of family law, including nullity, judicial separation, maintenance, guardianship, custody and many other matters. These are all matters to be taken into account when we are considering marriage breakdown. Many of them are areas on which work is going on in my Department with a view to bringing forward proposals for legislation including, for the benefit of Deputy Woods, legislation covering the recognition of foreign divorces.
The discussion of divorce in the committee's report amply illustrates the complexities of the problem and the wide divergences of view held by all of them with considerable conviction. I am not sure, however, what impact that report has had on public opinion generally. Indeed, I would not be at all confident that I would arrive at a conclusion on what the impact of that report has been on the opinions of Members of the House. I know what the impact has been on those Members who spoke in that debate but we are left to guess at what its impact was on other Members, including many of those not present this evening on the other side.
Nobody has suggested that divorce is the sole solution to marriage breakdown. Everybody agrees that there are a great many other initiatives that must be taken if we must have divorce. Most people will agree that the last thing that is wanted is divorce easily obtained on the scale that obtains in many other countries. I am sure it will be generally agreed that no proposal to introduce divorce should involve a departure from our fundamental position of fostering and protecting the institution of marriage. If it is to be introduced I think the view of a majority of people would be that it should be available as a last rather than as a first resort.
I am not sure what Deputy Taylor had in mind when he suggested that the debate on the report was structured — I believe I am quoting his words — in an  abstract way. All debate and discussion leading to a conclusion has to be for a part of it structured in an abstract way particularly if the debate is to lead to a specific set of proposals.
Mr. Dukes: Deputy Taylor may be jumping to a conclusion which is not justified by the tone of the debate we are having. It was as part of that debate and discussion that the Taoiseach, as he indicated in the House today, wrote to the principal Churches proposing consultations during the month of March on action to be taken on the whole range of matters arising from the report of the joint committee. The Taoiseach has indicated also that it is his intention, following those discussions, to bring proposals to the Government. In proposing those discussions with the various Churches the Taoiseach was particularly conscious of their role, as he said this afternoon, in the solemnisation of marriage and of their concern with all of the issues, including divorce, but including also the other areas discussed by the joint committee. That full range of issues will be the basis of those consultations. They are all matters that raise important questions, some of them complicated legal and social issues.
It is only right that divorce should not be considered in isolation. We have a duty also to meet the difficulties of those who have marital problems who do not see divorce as a solution. We need a wider consensus than that in this House and the consultations that the Taoiseach is undertaking are aimed at identifying to what degree we can get a wider consensus than that in this House. That is important for a great many reasons not least of which is the debt of justice we owe to people who find themselves in a position, as many people do, of extreme difficulty as a result of marriage breakdown. In the light of that initiative I take the view that it would be inappropriate, certainly inappropriate for all those who support that initiative, to engage in this House in  a detailed debate on the merits of the Bill at this time.
I do not think the Taoiseach could be expected on the one hand to conduct consultations with the Churches, the purpose of which is to help develop and define the sort of response that is needed to the problems of marriage breakdown, while on the other hand a debate is cronducted in the Oireachtas on a Bill which opts for one specific approach to the matter and to that extent prejudges a central issue in a particular way. I cannot agree with the contention of Deputy Taylor that parallel discussions would be useful in this regard. Sequential discussions seem to me to be far more useful in informing our conclusions on this issue. The proposals which the Taoiseach will bring forward following the consultations which he has proposed will be formed taking account of those consultations and also of the work of the joint committee and the debate in the House. In all those circumstances I take the view that the proper course now is to postpone further debate on the Bill until consultations with the Churches have been completed and the Taoiseach has had an opportunity of putting proposals to the Government taking account of all that has been said so far on this subject.
Mr. O'Malley: The Progressive Democrats are committed to the holding of a referendum on divorce and to the introduction of divorce here in certain limited circumstances. This party will support giving a Second Reading to the Bill advanced by the Labour Party. The Bill, however, is in our view seriously defective. We believe it is substantively and technically unsound in many respects. Having removed the constitutional prohibition on divorce the Labour Party Bill goes on to propose what it describes as certain safeguards. These are so vague as to be meaningless. The Bill states that  divorce should be granted only “in such circumstances where it is clear that due to the breakdown of a marriage the parties cannot reasonably be required to continue to reside together as husband and wife”. On the face of it that provision restricts the availability of divorce to couples actually residing together as husband and wife at the time they apply for a dissolution of their marriage. At best this is unrealistic and unhelpful and at worst it could lead to a great increase in the physical or mental risk to one or other spouse or to both of them.
The other two safeguards, as they are described in the Bill, are in the article of the Bill. The first of these seeks to confine the granting of a dissolution to the High Court and, on appeal, to the Supreme Court. I do not see that as any real limitation or protection. It is what one would assume, that a matter as serious as this was not going to be dealt with in the District and Circuit Courts. I do not see that as a protection in any sense. The other protection, or limitation, as it is described, is that the dissolution will not be made unless the court is satisfied that the interests of any dependant spouse or child have in so far as is just and practicable been protected. In other words, that alimony will be paid in cases where the court considers it appropriate to a dependant spouse, child or children. There is nothing unusual in the way of safeguard in the payment of alimony. That provision is common to divorce jurisdictions everywhere. For example, it is a provision that would be found in the divorce jurisdiction of the state of Nevada and cannot be seen as of any particular value here.
Our vote for the Bill is in order to seek to keep the issue alive to the next Stage of debate when we can propose amendments, assuming of course that we are allowed representation on the select committee of the House that will debate it. In that connection, in a matter as important as a constitutional amendment there should not be one of these contrived select committees. If the whole House can sit as a committee on any Bill that is not of great importance it is my view that  a Bill of great importance such as this should be referred to a committee of the whole House and nothing else.
Deputy Michael O'Leary's divorce proposals put before the Dáil last December had much to be said for them. They too require modification for technical reasons but in concept and substance however they have a great deal in common with the views of the Progressive Democrats. On Committee Stage of this Bill this party will propose an amendment to prevent the enactment of any divorce law unless the specific proposals are put to the people. The peculiarly personal nature of marriage, and its dissolution, convince us that this is the fair and prudent way forward on this difficult issue at this time. Opinion polls indicate that 77 per cent of the electorate support the introduction of divorce in limited circumstances. The experience of recent years indicates that there may well be a bitter and divisive debate on this issue when it is put to the people in a referendum. In order to ensure that the real issue at stake is addressed and that we have a rational and meaningful debate, we believe that the electorate should be given the right to approve the extent and nature of any divorce legislation that is deemed appropriate for our society.
To do this is to recognise not only the political reality but also the deep concern of so many people for the well-being of our society. This party will shortly publish detailed proposals for the substantive Divorce Bill which we consider should be put before the people ultimately. These proposals will be positive. They will be designed to protect and strengthen marriage and to deal compassionately and realistically with the irretrievable breakdown of marriage.
All political parties and all politicians have an opportunity now to express their views on this tangled and controversial question. It is tragic for those who believe in serious politics in this country that a covert and hypocritical system of unofficial and official Whips is likely to keep many, if not most, Deputies cowering in silence while their parties play it safe and  wait for the storm to pass. On numerous occasions in the past few weeks Fianna Fáil have called on us to spell out our policies. We have stated our policy on this issue. Let us hear now what their policy is. Unfortunately, we will more probably find Fianna Fáil not supporting this Bill and not opposing it, but just doing nothing.
It is remarkable, so far as Fine Gael are concerned, that those in that party who have postured longest and shouted loudest on this issue are now so anxious to postpone it. The plight of 70,000 victims of marital breakdown cannot be ignored forever. What we are in danger of forgetting is that the Ireland of 50 years ago or even of 20 years ago cannot be brought back.
If it is the duty of politicians to lead, we must show some modicum of courage. The longer we wait the more people we drive into an arena of family life that is not covered by any law. This does more than anything to damage the institution of marriage.
People have expressed a clear view on this issue. The self-declared constitutional crusaders are prepared to fight any battle so long as it takes place tomorrow. The Progressive Democrats believe that in the realm of marital breakdown, as in the realm of the economy, the people are tired of politics of mañana. We will work for solutions today.
Mr. Cluskey: This question of divorce has been bandied around in political circles for so long now that it is difficult to identify when it first became a respectable issue to even discuss. However, the party to which I belong have for many years recognised the need to remove the constitutional ban on divorce in order to allow this House to seriously discuss the question with the possibility of offering some solution to the many tens of thousands who are at best tolerating life. I am not talking only about those whom we can include in the statistics because their marriages have broken down visibly. There are also couples living under the same roof in respect of whom it would be a mockery to describe their lives together  as marriages. Those of us who are in contact with people day after day recognise that there are many in such situations who could be added to the statistics, regardless of how unreliable those statistics may be.
I was not always convinced about the wisdom of marriage. I have always had the idea that if two adult people enter into a commitment but chose at some future date to disengage themselves from that commitment, that is fair enough; but it has always been my belief that, if there are children involved, in such circumstances the rights of parents must take second place. I am supporting this measure because many years ago it was proved to my total satisfaction that in many cases the real victims of a broken marriage are the children when there is no legal way to end the marriage. I am not talking necessarily about physical damage. I am talking about the mental damage that is inflicted on tens of thousands of children as a result of their parents' marriages breaking down and because we have not faced up to our responsibilities in this House. That failure is a crying shame to Irish society.
Could the Minister for Justice have believed what he was telling us? Do Fine Gael and the Taoiseach expect any intelligent person to believe that the Churches must be consulted if we are to know what their views on divorce are? The Minister was talking to people in ivory towers when he talked about being detached. How detached can one be if he does not know what is the Churches' attitude to divorce at this stage?
On the other side of the House sit a party who have been in Government in this country for more years than has been  the case of any other party. Fianna Fáil have been in Government in their own right, but they have ignored this problem. This evening their only concern and focus was on the backs of at least 70,000 men and women and the children of those couples in trying to make party political points.
Deputy O'Malley referred to the imposition of Whips. So far as I know, he did not object to the system when it counted. There is a Whip on the other side of the House for Fianna Fáil to sit and do nothing. That does not apply over here. I agree with Deputy O'Malley when he says that the trendy liberals in Fine Gael can now stand up and be counted in the context of this Labour Party Bill. This Bill is for real. This is not an L and H debate where one can stand up and be for or against with all of us clapping the best speaker.
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