Private Members' Business. - An Bille um an Deichiú Leasú ar an mBunreacht (Uimh. 2), 1985: An Dara Céim (Atógáil). Tenth Amendment of the Constitution (No. 2) Bill, 1985: Second Stage (Resumed).

Wednesday, 19 February 1986

Dáil Eireann Debate
Vol. 363 No. 14

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Atairgeadh an Cheist arís: “Go léifear an Bille don Dara hUair”.

Question again proposed: “That the Bill be now read a Second Time”.

Mrs. E. Desmond: Information on Eileen Desmond  Zoom on Eileen Desmond  In the course of this short debate we will hear numerous arguments in favour of and against the provision of divorce law in Ireland. Tonight, I have only to look at the Order Paper to see one reason for divorce legislation: directly following this debate the House will begin to debate the Domicile and Recognition of Foreign Divorces Bill, 1985. That Bill will be before the House to clear up one of the many anomalies caused by the absence of divorce legislation here. It points once again to the legal tangle in which many families, and particularly women, find themselves.

That brings me to the main theme of my contribution, which is how divorce [3223] relates to women in particular. One of the main arguments consistently advanced against the introduction of divorce is that it represents a threat to women. We are constantly told that women would suffer directly from the introduction of divorce. The status of the family, of which women are the centre because of their caring role for children, would be undermined, we are told. Women, we have been told, would run a higher risk of desertion by erring husbands who would have the convenient facility of divorce at their disposal. We are told that divorce would heighten the risk of increased poverty and insecurity for women and for their children.

Basic to that argument is the notion that woman is the compliant spouse, woman's natural condition being seen as an emotional, sectional and financial dependant of her husband. That attitude seeks to exploit the vulnerability of women in society, where equality in all its aspects remains more an aspiration than a reality. It is an attitude that conveniently ignores the fact that marital breakdown occurs and that women already suffer its worst effects because of the absence of a coherent legal framework within which legal, financial and property issues may be resolved. It is a kind of attitude that assumes that if the State battens down the hatches by a complete prohibition on the availability of divorce, that prohibition in itself will underline the stability of the marriage relationship and act as a deterrent to spouses who might otherwise be tempted to stray.

Marital breakdown has caused serious problems in Ireland, entailing untold, undocumented suffering by women. Because of legal anomalies, such as the law relating to domicile, the absence of a mechanism in the State to dissolve marriages has left countless numbers of women in a legal limbo. There are instances of women being divorced abroad by their husbands but being unaware that their marriages had been dissolved for years after the event.

[3224] To say that the introduction of divorce would increase the rate of desertion is to ignore the steady rise in the numbers of desertions in the past ten years. About 15,000 Irishwomen have applied for the deserted wife's allowance or benefit since the introduction of the scheme. In 1984 there were 7,790 women receiving this support, 70 per cent of whom had children. The statistics available do not measure fully the extent of desertion because women under 40 years of age without children do not qualify for the allowance, and also because eligibility for the allowance is subject to a very rigid means test.

This argument ignores the sad reality for many women in Ireland. There is undocumented suffering by women in marriage. Those deserted are by no means the worst off. In many cases, desertion is a merciful end to years of terror, punishment and misery. As a woman public representative for more than 20 years I have had the confidence of women in my constituency and outside it and I have been shown all the marks of terrifying, brutal marriages — bruises, black eyes, broken fingers, burn marks. I have seen children in total terror, marked for life. I would judge that there are children who have been marked for life in what I would call the more civilised cases, where the fathers and mothers had not spoken to each other for years.

This is what the State is now being urged to continue to batten down the hatches on. While battening down those hatches we conveniently turn a blind eye to all the Irish style solutions to which people have to resort, such as divorces by husbands who have domicile abroad while up to now a wife is supposed to have domicile with her husband. The wife is left to cope with her children back in Ireland though she is supposed to be wherever the husband is. He gets a divorce. We ignore Mexican divorces, Haitian divorces, the Puerto Rican divorces — they may be few, but they are there — the deed poll changing of names, Catholic Church annulments and subsequent Catholic Church second weddings. These second marriages come to notice [3225] only if the couples of such marriages subsequently want to adopt children and they find that they cannot because they are not legally married.

As a party, Labour feel very strongly about this, and it is because we feel so strongly that we have introduced this Bill. All the remedies I have referred to we conveniently ignore, as we have ignored the views of the minority Churches with one exception, the Latter Day Saints, who are against the constitutional ban on divorce though, as a matter of internal discipline they may be against divorce itself. However, they are opposed to the constitutional ban. We have been told the Taoiseach requires further consultation. Nobody, certainly not us, is arguing against consultation at any time, but as the mover of the Bill emphasised last evening, consultation can take place side by side with the progress of the Bill through the Oireachtas. Therefore, the need for consultation is not a valid excuse for voting against the Bill. We will allow all the time that is needed for consultation but time is running out, it is not a plentiful commodity in the lifetime of this Government.

This subject has had a tediously long history in this Parliament. I moved a motion in 1980 seeking the establishment of an all-party Oireachtas committee to deal with the questions of support for marriage and marriage breakdown. About that time Deputy Noel Browne introduced a Bill and we had another some time later from the Workers' Party. We had an all-party report in 1967. We may not agree totally with what that recommended but it was there and it dealt with the subject. We had the recent all-party committee and we had Deputy Michael O'Leary's Bill. All the attempts to effect change in this area failed for one reason or another, but they brought the matter of marriage breakdown to the notice of Dáil and Seanad Éireann and to the notice of the people of Ireland over a long period. One measure was played off against another. We were always waiting for something. In the final analysis, no Government ever cared enough to [3226] have the courage to grasp the nettle of marriage breakdown.

I would ask the House not to repeat the old pattern on this Bill. Let us grasp the issue once and for all because time is not on our side now. I submit that all the arguments for and against the dissolution of marriage were weighted up and set down very carefully and explicitly, in so far as it is possible to do so, in the report of the Joint Committee on Marriage Breakdown. The committee recommended that a referendum be held. They recommended a referendum on a positive format, replacing Article 41.3.2 of the Constitution with a provision specifically authorising the Oireachtas to legislate for the dissolution of marriage.

The report stressed that the provision should place a duty on the State to protect the family and the institution of marriage. It stressed, too, that in the event of a referendum being approved by the people, there should not be divorce on demand and it stressed that the safeguard of the State's interest in fostering and protecting marriage and the family should be built into whatever provision would be substituted. It stressed that proper provision should be made for dependent spouses and children.

The committee gave very close and detailed consideration to over 700 submissions from interested parties and groups and heard much oral evidence over the period of 18 months so, while consultation can go on, one has to say that a great deal of consultation has already taken place. The time has come to proceed with this Bill on Second Stage and to engage in whatever consultation may be necessary during the latter stages of the measures.

The Labour Party's approach to this issue is not new. The fact that we sought an all-party committee in 1980 proves that. At each annual conference, each meeting, each occasion for debate, we have presented this as an item of great importance. We are not negative. We do not see this in isolation. We are concerned with protecting marriage but we [3227] are concerned too with providing a release for those whose marriages have failed beyond reprieve.

We were the first to speak of services aimed at reconciliation and protecting marriage. We were also the first to speak about properly structured family courts. We know, as everybody must know, that some marriages are beyond redemption. Some marriages are either non-existent in so far as the parties are separated, or they are sheer hell for one or both parties if they persist in their marriage. We know that extramarital, stable relationships have been set up. We know they are commonplace. I do not think there is any Deputy or any person in the country who does not know of a case or many cases of marriage breakdown. We hope that many marriages, with the services we are talking about, can be redeemed and put on a sound footing again, but we know there are others for whom the only solution is termination of marriage.

It is because of our concern for those people and our understanding of the hell in which they live on earth that we move this Bill. We know there are children who are placed outside the full protection of the law because of ambivalence in this area. Our first consideration must be for children and for their welfare. We are told by those who oppose this Bill that we must be concerned about the effect of divorce on children. I would ask people who make that case to identify for me the difference between the effects of divorce on children and the effects of nullity on children, on the effects of separation on children. In the day-to-day life of a child I cannot see what difference one makes that the other does not make.

My own contention is that a bad marriage, a marriage where violence is a regular feature, where parents are either fighting or not speaking to each other, has a much more detrimental effect on a child than any form of separation. Nothing is worse than constant turmoil and there are many hundreds and perhaps thousands of children in this State living in those conditions. I have met children who have been afraid to go to bed [3228] because of a drunken father or perhaps worse still a father who is not drunk but who is a bully. Those children have to live in those conditions and we sit here and turn a blind eye to that problem in our society as we have done year after year in this House. All these remedies are less detrimental to any child than the insistence that a child should live in a home where there is violence and where all the agencies of the State are precluded because it happens inside the door of a family home.

There is a clear majority of the population in favour of some change now. It very much depends on how questions are put to the population. While the Irish people would not in present circumstances or perhaps in any circumstances approve of freely available divorce, the vast majority of them realise that we have reached the stage where some steps must be taken. Consultations with the Churches can proceed while we are debating this Bill. We are all aware of the stance of the Catholic Church on this issue but there are many things which the Catholic Church, of which I am a member, has held to be morally wrong but which it has never suggested should be prohibited by the State. This issue comes into that category.

I appeal to the Taoiseach, and members of all parties, to support our Bill when a vote is taken on it next week. We will be amenable to holding consultations with any party after the Dáil has passed the Second Stage of the Bill. The committee system now operated by the Dáil is an ideal method for such consultations. The Labour Party have introduced this Bill because for years we have been interested in this subject. That interest arose from our concern for people and the problems and worries that affect them. There is no doubt that poverty, bad housing and poor education lead to difficulties in marriages. I am not saying that broken marriages exist exclusively among deprived people but remedies to broken marriages are more difficult to find for such people. Those who are better equipped financially find it easier to find a solution to such problems.

[3229] I appeal for support for our Bill on behalf of the many people who are living in misery. There has been stalling on this issue since I was first elected to this House. Successive Governments have failed to grasp this nettle. Deputies should be heartened by the fact that there is more public support for a change in the law in regard to divorce. We must take cognisance of the views of the public. Support has grown for a change in the law because the general public are more aware of the problem. We should not allow the problem to get any worse. We should play our part in trying to bring peace and happiness and a reason for living to those who are caught in this trap. I appeal for support for our measure.

Mr. D. Andrews: Information on David Andrews  Zoom on David Andrews  I should like to thank Deputy Desmond for a compassionate contribution on a very serious social problem that affects the country and will continue to do so until we in our collective wisdom in the House decide to resolve it. I have already made a contribution in the debate on the report of the Joint Committee on Marriage Breakdown and, in the circumstances, it is not my intention to take up too much of the time of the House on the subject once more. I have been a Member of the House for a long time and, as Deputy Desmond said, on a number of occasions during those years the subject has raised its head but more so in the recent past. That is as it should be. The House should be concerned about this serious social problem. When issues like this are brought before the House, as they should be, I see it as my function to express a point of view. There is no doubt that this can be described as a controversial issue. If I am seen to engage in controversy those who do not agree with my view will have a tremendous remedy at the next general election. If they do not support my point of view they can vote against me but in the meantime I have an obligation as a Deputy to lead and not to be led on this issue. All Members have a similar obligation.

Pressure groups are entitled to express [3230] their views to Deputies and, having considered those views, Deputies should make up their minds. However, Deputies should not be put under personal pressure by lobby groups. Such groups have a legitimate role to play in a democracy and I do not see anything wrong with that but when the lobbying becomes hysterical, aggressive and less than democratic it is dangerous. Fianna Fáil are not opposed to the holding of a referendum on this issue and that is the correct position for the party to adopt. Divorce is final and before it becomes a reality every possible effort should be made by the State and the Churches to bring about reconciliation between the parties. I want to emphasise the role of the Churches and the State here. The offers of the country should be opened to those organisations that help marriage reconciliation. The Churches should also receive financial help because some of their groups engage in marriage reconciliation work.

The real victims when a marriage is breaking down are the children. The family have no part in the court proceedings but up to that time they are very much involved emotionally. We have all heard horrible stories of the young victims of rows between two adults who cannot stand the sight of one another. I do not and will not support legislation which proposes quickie divorces. All the conciliation machinery must be used no matter how difficult it is for the parties concerned. However, if a marriage has irretrievably broken down the reasonable and proper step is divorce. I do not suggest instant divorces and I cannot offer instant solutions. On this side of the House we are offering concern and sympathy. Help should be directed towards bringing about a resolution of serious problems that arise between consenting adults.

I have great sympathy for the views expressed by Deputies Eileen Desmond and Taylor on this issue but I do not have any sympathy for the Bill which I consider to be defective in its wording. I have sympathy with its intent but not with its wording. Last evening Deputy Woods [3231] dealt clearly and in detail with the objections to be found in the wording of this Labour Bill. I have no wish to enter into a contentious area but what appears to be happening in this case is that once more the Government are not governing and are allowing the Labour rump to carry the Bill. This is another example of how tragic Coalition Governments have been in the history of this State. We have a Taoiseach who consults the Churches when it suits him to consult them but who fails to consult them when that course suits him. In a strange sort of way this could be regarded as some kind of consistency. It is somewhat like announcing the closure of various hospitals and an educational establishment and then announcing that there would be consultations about those closures. Of course the Churches have a legitimate role in the whole area of divorce. Their opinions and their views must be considered and taken into account in any well run democracy. Fianna Fáil support a referendum to remove the constitutional ban on divorce. Personally I, too, support the removal of that ban. Consequently, when a referendum is before the people I will be voting to have that ban removed. There can be no equivocation in relation to my position on this subject. I have said that before; I am saying it again, and, if necessary, I will repeat it.

When the wording for a referendum is resolved after what I consider to be a little piece of cod-acting by the group of people representing themselves to be our Government and when the question is put to the people I will give my constituents the solemn undertaking that they will have the benefit of my total silence during the run up to referendum day. My view is to let the people decide. In the meantime let the political parties have their say in the House. Let us have the views of all those Deputies who feel they have a contribution to make on this subject but let us stop the name calling. If there are Deputies who do not wish to make a contribution, so be it. That is their democratic right, too. We must not think any the less of them. If there are [3232] some whose views on this subject are different from mine I will respect those points of view. That is the sort of attitude that will make the debate great.

When we agree to let the people decide we can express our views here but when the campaign begins, the political parties should stand back. If other organisations, the Churches or any other, wish to become involved in the referendum campaign that is their democratic right but as politicians we have a duty, after the campaign begins, to say as little as possible. My view is that silence, too, can help causes on occasion. It can also help democracy. During the pro-life referendum we witnessed a very unfortunate public confrontation that was much to the detriment of the solutions that were being sought and which did not do politicians or politics any good. Some of the organisations, both in the pro-and anticamps, did not do their case any good either.

In the manner in which they are dealing with this subject the Government on this occasion as on other occasions have lost the moral authority reposed in them by the people to rule. The Government should take the decent line and, in Japanese style, fall collectively on the sword. They were elected to govern but it is a sad day for the country when there is a two party condition, and I use the word “condition” advisedly, because it is a condition of democratic illness, who cannot agree between them and when there is the kind of sordid nonsense we are witnessing this evening, and which can only be a tragedy for the cause that is espoused. The Fine Gael faction of the Coalition are saying that they will not support the other faction of the Government.

This Labour Party Bill does not propose protection for children. It provides for a token gesture, as Deputy Woods said, towards those who are referred to as interested dependants. That is not a protection for children but it is towards that area that our minds should be directed in the first instance. In divorce cases the warring parties, and I use that term with respect, are consenting adults but the suffers in that battle are the [3233] children concerned. There is no worthwhile protection for children in this Bill. However, I expect that the family law lawyers will deal with that question when making their contributions.

On the question of the role of Church and State, I made my position clear when I made my contributions to the committee on marriage breakdown. I have no difficulty personally so far as this question is concerned. I was brought up in the old fashioned, radical, republican tradition where the “Tonite” kind of republicanism was abroad. That is still my position. I lived in a part of the community where my neighbours included Catholics, Protestants and people without any religion. I was taught to respect all of them. The Churches have a legitimate and unchallengeable right to express their points of view on any subject that arises in the State but, equally, as a representative in this House, I have my rights and I must express what I consider to be in the interest of all the people. I am a Catholic and a practising one and I make no apology for that but I must take account of other denominations, of the views of Protestants, Jews, Seventh Day Adventists or any other group. That is where I see the distinction between the role of the Churches and the role of the State. I will not be intimidated by my religious beliefs nor will I allow those beliefs to allow me intimidate others. That is what we should be about in a pure democratic republic.

Mr. Shatter: Information on Alan Shatter  Zoom on Alan Shatter  I welcome the fact that this Bill is before the House though I regret that it is not a Government Bill. I regret also that this has led to a different approach being taken on the part of each of the Government parties.

As other speakers have said this evening, the issue before us has been raised in many instances and in many different ways not only in the lifetime of this Dáil but of preceeding Dáils. To some extent this Dáil has taken the matter a great deal more seriously than any of its predecessors. We have had a committee on marital breakdown. That joint committee examined extensively the entire area of [3234] marriage and marital breakdown during a period of about 18 months until they reported at the beginning of April 1985. The committee reported within a time schedule. They indicated that people on all sides of the House took the view that what was involved was an urgent social problem that had to be confronted. That committee may not have achieved everything some of us would have wished them to achieve but they undertook the most comprehensive examination of our matrimonial laws since the foundation of the State. A natural progression from the publication of the report was a debate here and also in the Seanad during which the merits or otherwise of the report were discussed. About 35 Members of this House contributed to the debate. These were Deputies from all sides though it should be said that Members on some sides were more reluctant to contribute than were others. The debate concluded in January and all that could be said has been said not merely on the issue of divorce but on the issue of what comprehensive law reform is required generally to deal with our marital laws.

What is now required is legislative action in this House. It is the tradition in this House that legislative action is normally forthcoming from the Government of the day. It is also part and parcel of the rules of this House that individual Deputies or parties through Private Members' Bills can introduce necessary legislation. This Bill is following a fairly natural sequence of events following the report of the Joint Committee on Marriage Breakdown which recommended that a referendum be held on the divorce issue, and following a comprehensive debate in this House and in the Seanad on that report in which the majority of Deputies and Senators from different perspectives all accepted the view that there should be a referendum on the divorce issue.

Some expressed that view on the basis of acknowledging that divorce was necessary to meet a major social problem. Others said a referendum was necessary to find out the public view although they were opposed to divorce, and others took [3235] a neutral view, simply that the people had a right to be consulted. The people have a right to be consulted on this issue. This House should not abdicate its role to pilot through a referendum Bill and pass on that role to a series of successive opinion polls, none of which can have any legislative effect or any real reforming effect.

Deputy Woods said last night that there was something unusual or extraordinary about the procedure which we are now operating. If Deputy Woods was as proficient a constitutional lawyer as he pretended to be yesterday evening in his contribution he would be aware that Articles 46 and 47 of the Constitution refer to the sovereign right of our people to amend the Constitution by way of referendum. Indeed, there have been two referenda during the lifetime of this Government on two totally disparate issues. When — according to the recent opinion poll — 77 per cent of our people favour the provision of divorce in limited circumstances and divorce remains constitutionally prohibited, we as a Legislature have a duty to extend to the people the opportunity to bring about constitutional reform. Our people have a right to be consulted by the legislators to ascertain whether they favour such constitutional reform.

I am not suggesting that the provision of divorce or holding a referendum is the solution to all the problems in this area. Anybody who suggests that is talking nonsense. One of the things lost sight of during the controversy surrounding the report was that the report recommended the most comprehensive overhaul of our family law system ever suggested in the history of the State. That report set out a series of legal reforms and social and administrative changes which sought to copperfasten and protect marriages, to provide support for marriages which were at risk. It also sought to update the legal mechanisms available to deal with the consequences of marital breakdown in a wide variety of areas from dealing with the problems of the courts granting decrees of separation, to dealing with [3236] the anomalies that arise in barring order procedures and to dealing in greater detail than does our current law with providing additional protection for children who are caught up in the tragedy of marital breakdown.

Listening to the contributions made by both Deputy Woods and Deputy Andrews one would think that none of these issues is currently dealt with in our law. Custody disputes arise in courts throughout the length and breadth of the country on a daily basis in circumstances in which marriages have broken down. Judges are adjudicating on what should be done in the interests of the welfare of the children to provide them with protection and to ensure that proper provision is made for their custody and care, and that proper supports are available to them. To someone who works on a daily basis with people who suffer the tragedy of marital breakdown and someone who is probably more familiar than any other Member of this House with court procedures, it is nauseating to hear the political claptrap talked in this House about protecting the welfare of children when Members of this House, and in particular successive Fianna Fáil Governments, have been totally unconcerned with that issue and seem blissfully and ignorantly unaware of the manner in which we are dealing with issues relating to children at present.

Whether or not we have divorce is irrelevant in this area because we have thousands of children caught up in situations of marital breakdown where parents are separating and where courts are adjudicating on the future of those children. The presence or absence of divorce will not change that. We have in our community tens of thousands of people who are the casualties of broken marriages. Their plight demands a response from this House, not just in the area of providing divorce.

During the course of the debate in the Dáil on the report of the committee I proposed that a special task force should be established within the Civil Service to draft comprehensive legislation to implement the totality of the recommendations [3237] of the committee. Nothing has been done about that. The slow nature of legislative reform and the years it takes to draft simple reforming legislation in this House, never fail to amaze me.

The need to provide comprehensive legislation to deal with all the issues which fall short of divorce does not mean that we can leave aside the necessity to hold a referendum. The report of the Joint Committee on Marriage Breakdown recognises that we have a gigantic problem in marital breakdown. It does not add to the credibility of Members of this House to argue statistically as to whether we are talking about 30,000, 40,000, 50,000 or 60,000 adults affected by the problem. There are different statistics. From seeing this at first hand, from seeing the numbers of court cases being held in private, it is my view that the statistic of 70,000 people being caught in the tragedy of marital breakdown, which is sometimes castigated, is not a wild exaggeration, but a conservative statistic. When finally a census is held in which a question is asked about the numbers of people who are separated spouses, we will discover that a great deal more than 70,000 are affected. I do not care whether it is 40,000, 50,000 or 70,000 in the context of this argument. If it was 10,000, 12,000 or 20,000, we in this House have a duty to seek to ameliorate the plight of those people who are the casualties of marriage breakdown.

It is interesting to note the different weight given by politicians within the Oireachtas to different aspects of marriage problems. Some people suggest that, if it affects only 20,000 or 30,000 people, it is not a problem that demands our attention but that if it affected 70,000 or 80,000 it might be such a problem. Is it not curious that in 1972 the then Fianna Fáil Government, when the late Erskine Childers was Minister for Health, passed the 1972 Marriages Act one major provision of which was to provide retrospective recognition to a couple of hundred marriages of Irish people celebrated in Lourdes. It was one of the happy holiday periods in Irish politics in the mid-sixties. The Sunday papers specialised in running [3238] pictures of the aeroplane on the tarmac. with the local hero waving to the hordes while climbing up to his plane. The local TD would go off to Lourdes with his intended loved one and a plane packed with parishioners from his constituency, accompanied by the local priest. After a few days celebration, the local priest would conduct a marriage and they would all return to the plane and fly back to Dublin. Everybody would get great publicity. Then many of them discovered that in order to be validly married at Lourdes it was necessary to go through a civil ceremony and not only were the marriages not recognised in Lourdes but they were not recognised in Ireland either. As this was a major social problem affecting at least 200 people, who could have resolved their difficulties simply by going through another ceremony here, the 1972 Act provided for the retrospective recognition of marriages at Lourdes — an issue of major national concern and of tremendous importance. If this House thought fit to pass legislation to deal with that matter, how can Members expect to be taken seriously if they are unwilling to face up to the position obtaining for up to 50,000 adults whom our law pretends are married but who have ceased to be married in reality?

Divorce does only one thing. It extends the right of re-marriage to those whose marriages have collapsed totally. To those who argue we should not have divorce, I ask what social advantage arises in preventing a 28-year old battered wife or a 30-year old deserted husband from re-marrying when there is no prospect of their ever again living with the person they first married? I fail to see where the social advantage, the justice, the compassion and the humanity lies in continuing to tolerate such a situation.

When a spouse is permanently departed from the marital home, what right have we as a society to deny the possibility of future marital happiness to the deserted spouse left residing in the family home? No one here would suggest that a widow or widower should be prevented from re-marrying. Indeed, if someone here suggested such a thing [3239] there would be a reaction of outrage. We would have hordes of people protesting outside this House that everyone inside had gone stark, raving mad. What is not always understood by those Members who do not regularly come across the problem of marital breakdown in their work — although they occasionally come across it in their clinics or in their own families — is that the grief experienced by the casualties of a broken marriage is no different in many cases from the grief experienced by people who suffer the bereavement of a spouse. The irony is that casualties of broken marriages not only suffer grief but their experience is greatly exacerbated by the fact that they experience rejection. That feeling is also exacerbated by the legal provisions which deny them the future possibility of entering into marriage in a socially acceptable and constitutional framework. This debate is not about the merits of demerits of divorce. What it is about is whether we should extend to the electorate the entitlement to express their views. I say, what right have we to deny them such entitlement on an issue of such major social importance?

Nobody yet has welcomed the new Minister for Justice to his new post. I do so now and I have no doubt he will distinguish himself in office. However, he has been put in an unfortunate position. The Taoiseach's approach is that this is not the right time to hold a referendum and different reasons have been given. It has been suggested it is not the right time because it may not succeed. I am not a prophet and I do not know if it will succeed. However, I do not think there will ever be a right time in which anyone can guarantee it will succeed.

The purpose of a referendum is not to get a major reaction from the people. The purpose is to obtain their views and to give them an opportunity to express them in the context of an issue regarded as important enough to go to them for a decision, and I hope in the context of an informed debate. Some 77 per cent of the people have said that in certain circumstances they believe divorce is desirable. [3240] Usually those circumstances are where the spouse is deserted, battered or has been left because the other person has established a relationship with a third party. That percentage has varied and at times it has been as low as 70 per cent. However, the fact that 77 per cent of the people have given their views merits our allowing the issue to go to the electorate.

Nobody here is suggesting that divorce should be generally available, or possibly compulsory. Everyone is talking about making divorce available in circumstances where a marriage has irretrievably and completely collapsed, where there is no possibility that the marriage can remain viable and where it is not reasonable to expect spouses to continue to live together. In many instances they have ceased to live together. There is no question of anything other than the provision of divorce in certain circumstances. Even when the general question is asked, a majority of people are in favour of a change in the Constitution. I am not a prophet and I do not know what would be the result. However, because of the extent of the social problem we have a duty to give people an opportunity to express their views.

I can understand the reason the Taoiseach has taken the approach he has adopted and I would not in any circumstances be personally critical of him. He has adopted the approach of proposing further discussions with the Churches because he realises there is a problem and there is a need to tackle it. He has a desire to do what he sees is possible to minimise bitterness and division that could arise in what undoubtedly would be an emotional referendum campaign. I wish him well in that task but I do not believe that carrying out such consultations creates a problem here for the House to pass the Bill on Second Stage. Even if this Bill is passed this side of Easter it will not go any further. There must be a Committee Stage.

Some Members have said that the wording of the Bill is not perfect and I would also take issue with some of the wording. However, some of the criticisms of Deputy Woods and Deputy [3241] O'Malley have been grossly inaccurate and have no substance in law. They do not deserve to be taken seriously. For example, Deputy O'Malley suggested last night that if this measure were passed we could never again in the future recognise foreign decrees of divorce. That is total nonsense. The Bill has nothing to do with that matter.

The measure is not perfect but it is a Bill capable of amendment. It provides a vehicle to enable a referendum to be held, which could be processed here while the Taoiseach completes his discussions. I do not believe it would be seen in any way as pre-empting those discussions because at the end of the day, irrespective of the groups consulted, it is the Members of this House who must make the decision. It might, indeed, be helpful for discussions to be held while we debate this issue in the House in a way which does not create religious bitterness or division. One is not mutually exclusive of the other. The difficulty with the approach being adopted now in the context of these discussions is that there is no assurance that these discussions can be completed in any particular timescale. The difficulty with discussions of this nature is that they can be ongoing. There is no guarantee or assurance that, during the lifetime of this Dáil, this issue will go to the people unless this Bill is passed through this House.

The Minister for Justice, speaking last night, said the issue should be postponed pending the completion of these discussions. The Taoiseach hopes these discussions will be concluded in March and I accept entirely his genuineness and his motivation, but I am not sure whether he can control the discussions to ensure that they will be concluded in March. If we complete this Second Stage debate successfully, I see no problem in Committee Stage not taking place until March has passed, with a view to providing any amendments necessary to this measure in the context of the Committee Stage debate and in the light of any discussions with the Churches.

Leaving aside the constitutional issues, [3242] I ask the Minister to ensure that something of substance is done to bring before this House the legislation required to implement all the other aspects of the committee's report, none of which is controversial and all of which have agreement from all sides. Their implementation would be widely welcomed, but to date the only gesture in the direction of implementing these recommendations is the announcement by the Minister of State at the Department of the Taoiseach that in three or four months' time we will start running a pilot mediation service for a period of three years, funded to the enormous amount of £75,000, which will just about recruit two counsellors, provide for a building and presumably a secretary. I do not see this as a serious attempt to implement the recommendations made by this committee. That service will be swamped within weeks of opening.

For many of those who joined Fine Gael between 1977 and 1981 and for some of those who stood in three successive elections for Fine Gael, seeking election to this House in 1981 and twice in 1982, and for some of us who were fortunate enough to be elected on each of those occasions, and for many who voted for Fine Gael in those elections, I believe the response of the Fine Gael Party to this Bill will be seen as the litmus test of our personal commitment and the commitment of my party to constitutional social reform. I personally believe — and I say this fully aware of the political predicament in which I find myself — that unless a significant number of members of the Fine Gael Parliamentary Party support this Bill in the lobbies on a Second Stage vote, irreparable and permanent damage will be done to the Fine Gael Party and to the credibility of the party's commitment to social and constitutional reform.

I listened with interest to Deputy Woods last night reciting the family Articles of the Constitution. I found Deputy Woods' performance more nauseating than usual. The total indifference to the family in marital breakdown which is truly the position of the Fianna Fáil Party [3243] was so clearly exposed by the failure of members of that party fully and properly to contribute to the debate on the report of the Oireachtas joint committee.

Deputy David Andrews says his party are doing the right thing in not opposing a referendum. Deputy Andrews regularly comes into this House and expresses all the right sentiments. I have not yet seen him vote in accordance with those sentiments. If he is in favour of a referendum he should vote in favour of this Bill. It is as simple as that. The Fianna Fáil Party are paralysed by indecision, playing political ping-pong with the lives of those whose marriages have collapsed. At least the approach the Taoiseach is taking is based, I have no doubt, on a genuine wish to resolve some of the problems associated with this issue, although unfortunately I do not believe that outside this House his approach will be seen that way by a great many people.

The Fianna Fáil Party are sitting gloriously on the fence, looking in two directions at the same time, hoping to offend no one and do nothing to assist anyone. They sit there pontificating about the importance of the family. A more nauseating performance is very difficult to imagine.

I do not think the wording of this proposal is perfect. Aspects need to be tidied up to ensure that a clear and concise proposition goes to the people. What needs to be tidied up is no more than the normal type of difficulty which arises on Committee Stage of any important measure. I do not see any major difficulty. I do not think it is beyond the intellectual capacity of Members of the Oireachtas to frame appropriate amendments to make this measure properly workable and presentable to the people. Those people who do not support this measure because they suggest it is improperly drafted are merely looking for an easy excuse to get out of voting in favour of it.

When we take a vote on this Bill next Wednesday the Whip will not apply in my party. Within the Fine Gael Parliamentary Party there are a great many Deputies who believe we should face up [3244] to this issue. Among Fine Gael people at branch level and those who voted for Fine Gael in successive elections, there is a wish that this issue be faced up to and that a referendum be held. I hope the media are wrong in predicting that this Bill will fail. I hope we will take it through Second Stage and, in the absence of a Government measure providing for a referendum, that this Bill will be processed fully through both Houses of the Oireachtas to extend to the people the right they have to make a decision in a referendum pursuant to Articles 46 and 47 of our Constitution.

Mr. Bell: Information on Michael Bell  Zoom on Michael Bell  Having spoken already for over three quarters of an hour in the debate on the report of the committee, there is obviously not much which I did not include in that contribution. Having listened to the debate over the past two days there are a number of points that could very usefully be made. I must comment on the complete and utter lack of interest in the House in relation to this debate proper. This is one of the most important, if not the most important piece of legislation to have come before the House during my three years as a Member. The total apathy and lack of interest in the debate is terrible, to say the least. There is a reluctance on the part of the Opposition to become involved in the debate. Many costs were incurred in relation to the report on this subject and all parties participated freely in its compilation. Now we find that there is a reluctance to have speakers participating in this debate. It is being avoided like an Irish plague. People do not want even to be seen in the House when the matter is being debated.

In general this outlines the attitude towards the whole question of divorce and social reform. It would seem that if a person appears on the same platform where the subject is being discussed he or she might be tainted with the same terrible affliction as the Labour Party are regarded as having because they want to carry out social reform which both Fianna Fáil and Fine Gael have very skilfully avoided.

[3245] I listened with great interest last night to Deputy Michael Woods, the spokesman on behalf of the Opposition. Other than the attempted castigation of the Labour Party and the Fine Gael Party for not being able to bring in an agreed Bill, he made no contribution to the subject matter. I have the highest respect for Deputy Woods; I can understand the position he is faced with, because he could not very well agree with the terms of the Labour Party Bill, but at the same time he could not actually disagree with the concept of introducing divorce by Government legislation. The Labour Party are very much a part of Government. Perhaps they are numerically the smallest party but that does not leave us an unequal partner in relation to the type of legislation which will go, or has gone, through the House.

The Labour Party must take credit for any social legislation that has gone through the House during the last three years. My colleague, the Minister for Health, has introduced quite a number of Bills and will be introducing further Bills which we hope will fulfil the expectancy of the Labour Party when we entered into Coalition three years ago. During Question Time I asked the Taoiseach a supplementary question. I do not want to be too critical of him as he is not here but I will not accept the excuse of consulting with the Churches for not supporting the Labour Party Bill. My colleague, Deputy Mervyn Taylor, introduced this Bill during the last session of the Dáil and there was more than adequate time in which the Taoiseach could have written a simple letter and invited the Church leaders in to discuss this subject with him.

I believe Deputy Cluskey put it in its proper perspective last night. Whilst consultation is necessary and welcome as far as the Labour Party are concerned, the views of all the Churches in relation to divorce are well known publicly, nationally and internationally. I do not believe we will ever solve the problem of the 70,000 people who are living in misery as a result of marriage breakdown throughout the country if we are to consult and [3246] get agreement from all the various organisations within the State who have very strong views on this very important subject of divorce. It would not be possible to frame a Bill which would be acceptable to all the different interests and pressure groups. Therefore, it must rest with the Members of Dáil Éireann to frame the necessary Bill which will put this very bad situation right.

During the past two weeks I asked a question in relation to deserted wife's allowance and in relation to single parents or unmarried mothers. The situation is that at the end of 1985 the State paid out over £31 million in taxpayer's money to deserted wives. I believe many of those deserted wives are not deserted wives in the true sense of the law and in the true sense of the regulations of the Department of Social Welfare. I could produce positive proof of many claims for deserted wife's allowance which are not in effect according to the regulations. I respectfully suggest that deserted wife's allowances are being paid to women when their husbands are living at the other end of the street. I suggest that many hundreds of deserted wives are being paid this allowance when they know very well where their husbands are. That is not a criticism of the system. That is the system as we find it, which forces people to be deserted in order to qualify for the allowances. I believe the reason why this is now being done on a large scale is that we have not proper courts to deal with the subject of separation and we have not proper courts to deal with the question of what happens to children after marriages break down, after couples separate and after the husbands go down the street and live in flats and then the women put in an application and get the deserted wife's allowance for themselves and their children while their husbands are having a good laugh at the whole thing; they do not pay any maintenance or honour the judgments of the courts which apply maintenance orders of £40 or £60 a week. Why should they do that when the State provides for their wives and children a deserted wife's [3247] allowance simply because we have not proper law in operation?

I believe the same thing is in operation in relation to unmarried mothers. It is simpler not to get married than to get married. There is no longer a real incentive to get married in Ireland. We have only to look at the startling increase in the amount of money provided, £19 million paid out in 1985 in unmarried mother's, single parent's allowances and benefits and contrast that with what was happening in the country ten years ago in relation to single parent's allowances and benefits and deserted wife's allowances and we will very quickly come to the conclusion that there is a great need for change in the law.

I am not suggesting that the Bill introduced by Deputy Taylor on behalf of the Labour Party will give a solution to all the problems we now face in relation to this subject. I am, however, suggesting that we have had the guts to bring forward a Bill, however unpopular it may be in some sectors, which will allow for a national debate, for a local debate, for a debate amongst the community at large in order that every sector of the community can give their views and can be informed.

We went into Government with Fine Gael. We supported the Fine Gael Party many times and I as a backbencher of the Labour Party trotted up through the Tá lobby against my will on many an occasion when I would have preferred to have gone the other way, supporting legislation which was part and parcel of the policy of Fine Gael. I know that many of my colleagues acted similarly and I know that the reverse is the case, that Bills put through, particularly in the social field, were supported by Fine Gael when they might have liked to vote against them. That is what Coalition is all about. That is why I fail to see why we cannot get the support of our colleagues in Government for this important Bill. Surely it is not unreasonable to allow it to go through to the next Stage at least, as Deputy Shatter said. If Fianna Fáil or if the Progressive Democrats, as outlined [3248] by the leader of that party, propose amendments to the Bill in the hope of perhaps meeting their aspirations or strengthening the Bill in whatever way they see fit, then if such amendments are put forward and are reasonable, if we are satisfied that they will meet our policy and our points of view and if they would strengthen the Bill, then they can be considered reasonably, but that is not what is happening.

This House is running away from its constitutional responsibility and handing it over to all sorts of pressure groups. That is not what the national Parliament was meant to be, and there is no place in the community any longer for those of us who wish to shy away from our responsibilities. Our responsibility is to govern, and never in the history of this State was there a time more suited to governing. The whole social fabric of this country is falling apart because successive Governments, in particular the Fianna Fáil Party who have been the party longest in government in this State, have put very little, if any, good social legislation on the Statute Book, and certainly no effective social legislation of any value has been put on the Statute Book. That is why we have today this constant running away and finding reasons why we should not legislate, constantly asking people for their opinions and then when we get the collective opinions we have not the guts to make the decision.

We are putting this Bill up to the other two main political parties in this Dáil next week, and I hazard a guess that if it is voted down, then if those unfortunate 70,000 families are in a desperate situation now, 140,000 families will be in the same situation or worse ten years from now when many of us will not be here in this House to discuss the same subject again and again and run away from it.

I was very pleased and proud to be part of the Labour Party who introduced this Bill and I was proud of its introduction by my colleague, Deputy Taylor, our Chief Whip, who knows the law. He is a trained barrister and solicitor. Other people in this House at this very moment are also trained in the administration of the law [3249] and they and every Deputy, male and female, know the problems created by broken marriages. They meet them in their clinics every week. They know the housing problems they create. They know the problems created for children. They know the problems created in trying to get payments for unfortunate women when husbands just disappeared, and yet they are prepared to run away from those problems when it comes to correcting them. Why are they doing that? They are doing it for a few miserable votes. The people will not thank us for that.

I would prefer to go out of this House feeling that I have been a part of a Dáil that has legislated on behalf of all the people, not on behalf of all Christians, not on behalf of any one sector of the community, but on behalf of the people who collectively sent us here to represent them. I say again to our colleagues in Fine Gael that before this Dáil finishes we will have to go up those stairs and support them on the introduction of legislation that we will not want. I tell them that if we are to have any faith and certainly any respect for the idea of Coalition, then it can only be on the basis that we respect each other's views and that we have to take the bad medicine with the good.

Mr. Skelly: Information on Liam Skelly  Zoom on Liam Skelly  I welcome a second opportunity to make a contribution in this debate on marriage breakdown and this divorce Bill. As in the debate before Christmas, it was very difficult to get Members around the House, especially from the far side, to speak on the Bill. I make no apology for referring to the contributions from that side and in particular the way the Members there are scurrying from their responsibilities. I listened, as everybody else did, to the spokesman on behalf of Fianna Fáil last night saying that they would not be opposed to holding a referendum on divorce but this would have to be done following a Bill sponsored by the Government as a whole, that they would give constructive consideration to any mature and complete proposals and that as a party — which I presume means that there would [3250] be no free vote — they would take a responsible and caring decision — I suppose such as they are taking now on this. They complained that the wording of the Bill before us is vague, inadequate and uncertain. Does that mean they would vote against it because of that?

For taking this brave initiative the Labour Party are accused of cynical backroom tactics. This is the contribution made by the party who claim to be the biggest party in the country. Their spokesman said further that this Bill has not the support of the Government. If it had the support of the Government, would Fianna Fáil back it? Their statements seem contradictory. Just who is using cynical backroom tactics and when will this hypocrisy which was evident here month after month for the past three years be recognised finally by the people? I am tempted to say that the conscience cry of Fianna Fáil should be not “Arise and follow Charlie” but “Home, Charlie, and do not spare the Whip”.

Mr. Hyland: Information on Liam Hyland  Zoom on Liam Hyland  Talk to your own Taoiseach first.

Mr. Skelly: Information on Liam Skelly  Zoom on Liam Skelly  They are a party of flagellators. The Whip should be used not to force party cohesion but to facilitate it. In a study on the British backbencher Peter Richards said that, while politicians understand the need to restrict controversy in the interest of their party, the internal strains within the party are severe and when these become too powerful to be restrained by pleas for unity some form of eruption must follow. We have seen that over there with the departure of those people who could not stand the strain. The attitude of Fianna Fáil towards this Bill and most social legislation requiring them to make a stand is: “Damn your principles and stick to your party”. That may be sound tactical advice but not infrequently it fails to appease rebellious spirits.


Mr. Skelly: Information on Liam Skelly  Zoom on Liam Skelly  Hence the rise of the PDP on the far side, the few brave people over [3251] there who dare to stand up and say what they feel on an issue of conscience.

A Deputy:  Is the Deputy thinking of joining them?

Mr. Skelly: Information on Liam Skelly  Zoom on Liam Skelly  I would not be thinking of going over there.


Mr. Skelly: Information on Liam Skelly  Zoom on Liam Skelly  You do not lead from behind and with this legislation, as with other urgent legislation, it is necessary for legislators to get out in front and take the initiative, which is what happened here tonight. Because divorce has been so far reaching in its effects on society as full a consultation as possible is necessary, especially in this country and in particular because of the stances that have been taken in this House on this issue in the past.

Debate adjourned.

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