Private Members' Business. - An Bille um an Deichniú Leasú ar an mBunreacht (Uimh. 2), 1985: An Dara Céim (Atógáil). Tenth Amendment of the Constitution (No. 2) Bill, 1985: Second Stage (Resumed).
Tuesday, 25 February 1986
Dáil Éireann Debate
Mr. Skelly: Last Wednesday I talked about the short and happy history of the attempt to introduce this form of legislation into the House and mentioned that divorce in its effect on society is so far reaching that as full a consultation as possible should take place. I pointed out the attitudes of the parties to this Bill.
 The Progressive Democrats felt that even though the Bill was seriously defective and substantively and technically unsound, the electorate have the right to decide on any legislation providing for divorce and they said they would shortly publish substantive divorce Bill proposals designed to protect the institution of marriage by recognising the reality of breakdown.
In 1980 a motion was introduced in the House seeking to establish a committee to report on an appropriate form of amendment to Article 41 of the Constitution. During the course of the debate on that motion the House was reminded that in 1967 a committee reported and made some recommendations, even though in 1980 the Fianna Fáil Government refused to consider the matter at all. In the Official Report of 29 October 1980, at column 1115, a Deputy dealing with the report of the 1967 committee stated:
This universal prohibition has been criticised mainly on the ground that it takes no heed of the wishes of a certain minority of the population who would wish to have divorce facilities and who are not prevented from securing divorce by the tenets of the religious denominations to which they belong. It also argued that the Constitution was intended for the whole of Ireland and that the percentage of the population of the entire island made up of persons who are Roman Catholics though large is not overwhelming. The prohibition is a source of embarrassment to those seeking to bring about better relations between North and South since the majority of the Northern population have divorce rights under the law applicable to that area. It has also been pointed out that there are other predominantly Catholic  countries which do not, in their Constitutions, absolutely prohibit the enactment of laws relating to the dissolution of marriage. Finally, attention is sometimes drawn in discussing this subject to the more liberal attitude now prevailing in Catholic circles in regard to the rites and practices of other religious denominations, particularly since the second Vatican Council.
It can be argued, therefore, that the existing Constitutional provision is coercive in relation to all persons. Catholic and non-Catholic, whose religious rules do not absolutely prohibit divorce in all circumstances. It is unnecessarily harsh and rigid and could, in our view, be regarded as being at variance with the accepted principles of religious liberty as declared at the Vatican Council and elsewhere.
It would seem, therefore, that there could be no objection from any quarter to an amendment of the Constitution on the lines which we have indicated in paragraph 124 and we unanimously recommend that such an amendment be made.
... we have advanced further now and we could simply agree on the case of known facts that we recognise the ending of marriage in the temporary and permanent barring orders, in private and judicial separations, the ending of marriage in the High Court mensa et thora. We recognise that marriages can end, but no law can keep people together if the marriage has broken down.
We recognise that marriages can end, but no law can keep people together if the marriage is broken down.... There is no law which can stop people forming new relationships; there is no law, where a marriage has broken down and people are living in isolation, that will prevent them from forming new relationships and cohabiting outside marriage. This has gone on in every country and it is going on here. We are no better and no worse, we are just the same as the rest of them, to use the biblical phrase and it is about time we accepted the need to recognise that marriages break down and that the only way in which we can help people is to accept the recommendation of our own all-party committee.
These words were spoken by Deputy Noel Browne. When this issue comes up we have frequently taken refuge in finding another reason for not making a decision. This Bill to change the constitutional ban on divorce is the sixth Bill in five years to come into the House to get the Members to recognise that marriages are breaking down. We are now running behind the Hierarchy to gain time and we are shirking the necessity to introduce legislation.
A democracy is judged on how it treats its minorities. If we were to apply the majority rule all the time it would be a very unfair country. This rule can be applied in reverse. There are many cases where minorities are very badly off and the majority would not want to keep them in the same circumstances, an example is strip searching in prisons. We need not concern ourselves about the size of the minority, but about the validity of their rights. The full consultation that is desirable does not stand up as a case for delay. There is an opportunity for discussions with the Hierarchy. I hope the Taoiseach will not make the same  mistake as Dr. Noel Browne when consulting the Hierarchy about the Mother and Child Scheme, and that he will bring witnesses. There is no doubt that because of the presentations the Hierarchy made to the Forum, and publicly, they will give their best advice in the coming months in relation to the form and circumstances in which broken marriages can be recognised. There are major recognised flaws in the laws of nullity. One obvious thing is that we must legislate.
We in our party have been given the opportunity to exercise a free vote, a rare thing, in order to exercise our prerogative as legislators. This would be an interesting House if we were all allowed exercise free votes on other topics as well, so that people could stand up and be counted and could represent the people who sent them into the House because to a great extent that is not done. If this matter goes to a referendum and is passed I do not think that the Hierarchy, for example, can act like the Unionists and keep saying, “No, no, no”. The Hierarchy were the last into the Forum and I was present when their presentation was made and when a member of Fianna Fáil at that time for and behalf of the Hierarchy pointed out to us that we were the legislators and that it was not up to them to tell us what laws to bring in but they reserved the right to comment on them. Many of us thought that a little less than honest because it led to the famous occasion when Deputy John Kelly accused the Hierarchy of having to think on their feet for the first time since the arrival of St. Patrick in this country.
Deputy Bell may get his wish on the last night that he will not be alone going through those lobbies. Often in the past he has pointed out that his party came through when they need not have done but they did so in the interest of the country. They did not act like sleeveen legislators whom I can think of who frequently hide behind something, mainly the Whip or whatever else is opportune at the moment. I wonder when the people of Ireland are going to see through this finally and cut such people dead at an election and say that they want no more  of this kind of hypocrisy; they elect representatives to legislate on their behalf and want them to do so with honesty and courage. If on the basis of their action these representatives are returned to Government people cannot look forward to any form of honest representation because they will put themselves first instead of the country.
I welcome the Labour Party's new found courage in putting this Bill forward and it will give me great pleasure to support Deputy Mervyn Taylor's Bill in this House when it comes to a vote. Many times with a heavy heart he has had to do things for the country that probably he would not be inclined to do if he was putting himself and his party first. If they find it OK to vote on this Bill with its known defects I cannot understand why they did not find themselves able to vote for the first of Deputy Michael O'Leary's Bills. The second of his Bills would have allowed people to decide what kind of legislation would be brought in. Really he was giving the Hierarchy an opportunity to make their views known because they would have done that by informing the people in their usual way and in the same way as the consultations that are to take place shortly with the Hierarchy would have done.
My experience of legislation in this House has not been happy and it would caution me in many instances about allowing the House to make laws, but there are safeguards on this matter. I have had the unhappy experience of Ministers using the numbers game in this House, for example on the Criminal Justice Act, the recent gaming Act, the lotteries Bill which is coming up and in the removal of civil juries. To use numbers to pass any legislation without the fullest consideration is a derogation from democracy. I welcome any other Fine Gael people who will this time, by virtue of the fact that more than just one person will be standing up tonight, make this free vote more credible. The last time we had a free vote I was collared after exercising my free choice and when I pointed out that we had a free vote I  was told that we more or less agreed to abstain, even though we had a free vote. That means that we were free but not really free. This is more or less the same, but people are standing up to do the job they were elected to do, and that is good. This time I suppose, not standing alone, I will not be Skelly the rebel, the maverick, or a bushwhacker as one Minister called me on other legislation.
We are making progress and the pace is being forced. I am glad to see the pace being forced. I know that a huge body of legislation is to come in here, but we have had an opportunity — certainly from the type of Deputies that we have on this side of the House in Fine Gael and Labour, who can bring forward progressive legislation like this — with a bit of encouragement to make great strides towards relieving society of the injustices that are predominant in it. I accept that there is a very significant demand that the people be given a chance to express their views on whether divorce legislation is needed. The joint committee in their submission made a significant contribution to our knowledge of marriage breakdown and ways of preventing it. In that sense it is a step forward to have gone from the 1967 committee to the 1980 motion and then to the committee which dragged on for a couple of years.
It is significant that, even though small in number, the Labour Party have brought in this Bill. Fine Gael have an opportunity of a free vote, it has been emphasised that it is a free vote, and the gauntlet has been thrown down in many respects to those who have professed themselves to be social-democratic or liberal in their point of view, to be caring and to want a just and caring society. We will see how they respond to this. None of us sees any major obstacle in the defects that may be in this Bill — they have even been acknowledged by the Labour Party — because we know that the fullest consultation and public debate will take place and that on Committee Stage the Bill will be most carefully and deeply examined. It will not be legislation passed through on the nod. We spent a  year in this House examining the Criminal Justice Act before it went through and we will spend — I hope not a year — as much time as necessary and give it much deep and careful thought before we pass this legislation. We shall do so with full consultation with the majority religion outside, and all will be able to make their input. I am not worried that the wrong decision will be made. We will come up with legislation that will not be classed “divorce Irish style” or like the first abortive attempt at the contraceptives Bill but will be a fair and compassionate measure which as far as possible will work if we put our minds down to it.
It is not possible in this short debate to go into the Bill in any great depth, but let us recognise that it is a response to marriage breakdown that we are asking for. There are three main ways in which we can provide support for marriage and we intend doing that, namely by education, providing better material support and better conciliation and counselling services. With regard to some of those measures, I must applaud Deputy O'Leary for his research and his own carefully considered Bill. We will be able to add supporting measures from other people's legislation. For example, last week the Minister for Women's Affairs introduced the National Marriage Counselling Service which I mentioned in my contribution on the marriage breakdown committee.
Even after we have provided better preparation for marriage and better material support for marriage and family life, there will still be those whose marriages have broken down. We will have that problem to an even greater extent and it is wrong to ignore this issue. We are being asked if we wish to allow the people of this country to express their view on whether they believe that the constitutional ban on divorce should remain. We could continue to put off that decision until an opinion poll was conducted showing that 70 per cent or 80 per cent of the people wanted some form of divorce legislation. This is an undemocratic, misguided and wrong motion. It is the type of conduct that should be left  to the members of the main Opposition party who are always the first to jump once they are absolutely certain of which way the wind is blowing. In the matter of slavery, there were very few people initially in favour of the abolition of slavery. Senator Higgins referred to this movement in the Seanad. After a horrific bombing in England there is usually an outcry in support of hanging but when things die down, perhaps a few months later, a referendum would result in a call for the abolition of hanging. In that short time there would be calls for contradictory forms of legislation. The educated process should proceed, even if this Bill is defeated. We have a duty as legislators to lead. We cannot lead from behind, saying, “There go the mob. I am their leader, therefore I must follow”. The reality is that we cannot stop people's marriages from breaking down. We could continue to deny them the right to remarry and that is what this whole debate is about. We should allow the people to express their views. Let us offer the people a choice.
We heard from Deputy Woods about responsibility, care and concern on this issue, but we can see how responsible his party are in depriving their members of a free vote, making them abstain on the issue. I hope all the so-called free voters and the new PDs and others are watching this performance. The answer that Fianna Fáil have been begging for over the last number of years will, I hope, be finally given to them because of their attitude towards this legislation and legislation which has put our people on the rack, causing suffering, pain, anguish, mental torture, physical depravity and torment. Fianna Fáil are playing politics with emotions, with people's lives and, above all, with the lives of innocent children who in their tens of thousands are affected by the lack of courage and integrity of the members of that party who beg to be allowed to hide behind a Whip. Any time urgent legislation comes into this House they have not the guts to make a decision. That is the kind of representation that they are offering the people. I shall definitely support this Bill.
Minister of State at the Department of the Environment (Mr. O'Sullivan): In speaking to this Bill, it is necessary to repeat what Deputy Taylor said last week when moving the Bill on behalf of the Labour Party. It seems that people who have spoken on the Opposition benches took little notice of what he said. The main points that he made were that the purpose of the Bill was to give people a choice and that in asking the House to support this Bill he would not preclude or prevent consultation. Despite this, suggestions have been made, particularly by Deputy Woods, that the Labour Party were trying to ram through this legislation to give divorce on demand. Nothing could be further from the truth.
Deputy Taylor said that if the Bill passed Second Stage it would be referred to a special or select committee, or a committee of the whole House. That should allay the fears of anybody who has reservations about the intentions of the Labour Party. Despite that, we were subjected to a litany of abuse from Deputy Woods. Deputy Taylor also said that he was prepared to accept that some Deputies would like to see further safeguards written into the legislation. That should allay the fears expressed by Deputy O'Malley who, while saying that his party would support the Second Reading of the Bill, said that they would be coming forward with some amendments. This is quite in order and legitimate and we welcome this indication of support from that Deputy.
Deputy Woods in particular, who was spokesman on behalf of the Fianna Fáil Party, did everything possible to malign the Labour Party and their intentions regarding this Bill. It is worth referring to some of his comments because it appears to be a total cop-out on the part of the Fianna Fáil Party. They have said that they would produce a Bill — but when? They have been saying that for many years. Some of the more damaging things which Deputy Woods said need to be corrected. He said that the Labour Party Bill would provide divorce on demand — nothing could be further from the truth — and that there was only a  token gesture towards the dependent children. The Labour Party were accused of outrageous behaviour and of abusing the system of Private Members' time. Minister Dukes said that this procedure was quite legitimate and everybody here who has experience of parliamentary procedure should know that this is enshrined in the Standing Orders of the House. Private Members' time is a device whereby people can, if they so desire, table motions for discussion. I fail to see how Deputy Woods reached his conclusion. He accused the Labour Party of presenting a cynical picture and of using backroom tactics. He also accused us of not having the legal backup. How can he say that? We did not make known what type of legal advice we had received. He compared the advice of the Labour Party with that of the Government and said that the Government would have the best advice. However, it is fair to say that the Government do not always have the correct advice.
Regarding the accusation of opportunism, the record will have to be put straight. In the mid-seventies the Labour Party, not capriciously but after a great deal of consideration, decided overwhelmingly at their annual conference in favour of the removal of the constitutional ban on divorce. More than a decade has since passed and the social, economic and basically human problems associated with family breakdown have become far too pressing to be ignored any longer. The bringing forward of a Bill a decade or more later can hardly be described as opportunism. In fairness, we took a decision on divorce in the mid-seventies when the issue was politically controversial and we have not claimed a strong position since then. That issue is equally controversial today but, nonetheless, we have taken a courageous stance on this matter and our record to date will stand up to examination.
Today's opinion polls indicate that more than 70 per cent of the electorate would be in favour of divorce in very limited circumstances and that more than 50 per cent would support a referendum on the constitutional prohibition. These  figures have given the larger parties enough courage to address themselves to the problem, or at least to recognise that we have a major problem that will have to be addressed. I am sorry to have to highlight this point, but it is important that the records show that the Labour Party did not at any time look upon this as a means of securing cheap publicity.
Having made clear the Labour Party's position on divorce I should like to come to another important point. This is a historical Bill for the Labour Party and I have been assured my colleagues will give it their full support. We have taken courageous action of which I am very proud. Most recent statistics show that more than 70,000 Irish families now face marital breakdown. This is a colossal human tragedy. More important is the fact that a large number of families, whose numbers are not known, are facing marital break up but these figures have not been registered. It is fair to say that since Labour made clear their position on marital breakdown and divorce there has been a major change in society. There has been a dramatic change in recent years during which we have been subjected to stresses and strains never experienced by previous generations. In Cork we have suffered the greatest ever number of job losses with accompanying problems which have put a strain on family units.
I will give some statistics which need deep consideration. In December 1984, 3,653 payments were made of deserted wives' allowances and 4,403 payments were made of deserted wives' benefits. One year later, in December 1985, the figure for deserted wives' allowances had increased to 3,965 and to 5,165 for deserted wives' benefit.
Not included in these figures are deserted husbands. They have been largely ignored, men who have lost their wives and are charged with having to cope with young families. While canvassing in the last three general elections I met some of the men who had to go through the humiliating experience — I do not suggest that it is not humiliating for deserted women — of having to give up their jobs to try to bring up their children.
Of course, the greatest victims are the children. It has been suggested that the Labour Party have not made provision in the Bill for the care of such children or of children following divorce. That is not true. Deserted wives cannot provide adequately through maintenance allowances for adequate education for their children. Indeed, in some cases they cannot clothe or feed them. Are we still to continue to ignore this major social problem? Are we to ignore the fact that people who are not married must suffer a certain guilt complex about their union? Many Catholics have been deprived of the sacraments because they cohabit with people to whom they are not legally married. As I said earlier, our primary concern must be for the children of these broken homes, and the Labour Party are anxious that due recognition should be given to their plight.
I am a member of the Oireachtas Joint Committee on Legislation. On one occasion we had representatives from the Commission on Alcoholism. From the statistics they produced we were left in no doubt about the effect alcoholism has on families and on marital breakdown. Deputy Taylor, as chairman of that committee, is probably more aware than anybody of the extent of the problem arising from alcohol abuse.
Mrs. Barnes: I welcome this Bill and I do not think anybody inside or outside the House can suggest that we have not had debate, discussion, consultation and a full exchange of information on marriage breakdown. Up to now we had been reluctant even to recognise its existence, much less to speak on it or seek a redress for it. I have covered many aspects of the problem in the many debates we have had, and tonight I will highlight a point that should have become more obvious  to us. One of the problems one has when discussing this outside the House is the perception and the fears that have been raised regarding the introduction of legislation to put a referendum to the people, one of the most democratic moves we could make.
This is an area that for too long has needed legal acknowledgment of its existence. Until recently there was a sense of hysteria attached to it. People did not recognise the responsibility legislators have about it. We have not been separating the responsibility of the Churches and the State in this regard — the civil and the sacramental ceremonies. This has given rise to a sense of confusion among many people who have not been made aware by legislators of the responsibility the Oireachtas has with regard to the introduction of legislation of this kind. Indeed, I suggest that we have not been able to divide the responsibilities of Church and State in regard to marriage because here, unlike other countries, we have not separated the two ceremonies.
The first line of the report of the Committee on Marriage Breakdown says that marriage is a legal contract. We do not tell our young people just how serious this legal contract is. Unfortunately, it is only when the marriage breaks down that the legal aspect comes to the fore. Women with young children often ask themselves at that stage why they were not in possession of the facts up to then. When putting a referendum before the people we should stress the need to separate Church and State and the legality of the contract of marriage. In this country there is usually just one ceremony in the church, but in other countries there is the legal ceremony, and the sacramental marriage takes place in the church. This is clearly seen as a religious ceremony with all it entails and at the legal ceremony the terms of the contract become very clear. When I explain to people our role as legislators in this area they lose their sense of confusion, and they no longer see legislation as an attack on the Church's perception of what marriage should be. It is very important that in  this debate, and in the campaign which hopefully will follow, this is clearly noted. Too often we have allowed our young people to enter into marriage without pointing out the fact that they are entering into a legal contract.
In a business partnership, the partners are not obliged to make a lifelong commitment. There has to be an option so that they can get out of that legal partnership. We are constantly told to read the fine print. Who tells our young people to look at the fine print of the legal contract they are entering when they marry? It is up to us as legislators not alone to point to the fine print but to separate the legal contract from the church ceremony. We should legislate for that type of legal acknowledgement. The only way we can start to tackle the irretrievable breakdown of marriage is to hold a referendum, put the full facts to the people and, with the approval of the people, introduce legislation for divorce.
One of the problems in this House is that there is so much repetition. I wish more Opposition Members would put their views on record because that would mean many Government speakers would not have to repeat the same views. We acknowledge that there is a problem with marriage breakdown in this country, but we have not introduced legislation to enable us to put a referendum on divorce to the electorate. As legislators we should be ashamed of the fact that we have not tackled this problem. We have allowed this situation to go unacknowledged legally.
Many couples are suffering great hardship because of marriage breakdown, but we do not allow them the right to remarry because we refuse to allow them divorce. What do we do to these people when we deny them that right? Let us take the example of a young, immature couple. After four or five years the marriage breaks down because of the husband's brutality. The wife knows nothing of a loving relationship. She looks on a husband as somebody who treats her violently. How do their children see marriage? They do not see family  life as a loving relationship. In their formative years they see the father figure as an image of fear. We tell people that even if they separate, we will not allow them to enter into a loving relationship. There is no way we will allow the wife to enter into a legal loving union with a loving and caring husband. We tell these young children that the only model of fatherhood we will legally allow them is the one where their father was unloving, uncaring and violent. I do not want to be considered a chauvinist because I could turn that example around, although violence and brutality apply more to mens' treatment of women than vice versa. But there are young men whose marriages break down and there is no way we will allow them legally to have a loving relationship or to have children in a legal and loving relationship. Nobody can tell me that should be the real concept of marriage.
Nobody can tell me that, whatever God one believes in, that God is destructive enough to acknowledge human frailties in all areas of life, to forgive and urge others to forgive, but when it comes to marriage and a mistake is made, He draws the line there. In other words, He urges tolerance and forgiveness in every area but as the God of love, He decides that if a marriage breaks down the husband or wife is not entitled to a legal loving relationship. As long as we refuse people the right to vote for divorce legislation that is what we are doing. I do not believe that we as legislators can allow that kind of tragic, uncaring, almost sadistic attitude to obtain or to say: “It is not our affair”, or “Let us wait until the people rise in unison when we will have to give in, “or” We have no way of losing the referendum or losing political votes”.
How can we condemn the thousands of couples and their children throughout the country not just to the type of limbo we put them into — legally that is where they are — but hell with regard to the future and their present realities? I believe, if we are to be mature — after all that is what we urge our marriages should be about — we should point out the legal contractual side of marriage as well. There is the ceremony in the sacristy  of couples signing the book. I know if I went out and asked people what they believed they were doing in the sacristy when signing that book most of them would think that it was getting another attractive photograph with the priest standing beside them. Very few of them would realise they were actually signing on behalf of the State and the State's recognition of their marriage, whereas, of now, we will not allow any way out whatsoever. I believe there is a great amount of ignorance with regard to the responsibility to the State.
I urge that we have the sacramental marriage ceremony in the Church of one's belief but as well as that, in order to show the seriousness of the matter and the State's responsibility within marriage with all its consequences, we should have a separate ceremony where that is recognised. I also believe, in order to concentrate the minds of our young people on the seriousness of the commitment they are making not only to one another but to the children they have and to society, because we are constantly reminded about how the common good relies on fundamental good family units, that some model of marriage contract should be drawn up as well where the legal consequences, negative and positive, are enshrined and where they would actually know and be aware of what they were taking on when they took on this lifelong commitment.
It is very unfair of us to have people entering into such a serious relationship, particularly in this country where we do not even allow them a way out, without pointing out that this is the dimension which will become crucial in an irretrievable breakdown situation. I reiterate what Deputy O'Sullivan said about a comment which Deputy Taylor made last week in introducing this Bill and which is absolutely the bedrock of democracy. I wish it were a Government Bill not just a Labour Bill. I will not be optimistic or made enough to think that it would be an all-party Bill because, unfortunately, in the lack of response from the other side of the House, I would be a fool to believe that would happen. Deputy Taylor said  something very fundamental. He said it was a matter of giving choice to the people. I do not believe anybody on any side of the House has the right to deny that to people.
Something else came out of this debate which I would like to reiterate, that was in Deputy Eileen Desmond's moving contribution last week in which she put a lie to a campaign that has been going on for some years by people opposed to the introduction of divorce legislation in Ireland. They raise fears among women that the victims of divorce legislation in Ireland would be women and children. Deputy Desmond and I know as well as every Deputy in the House who is in touch with his constituents that women and children are already the victims. Deputy Desmond said last week and I repeat it now that it was only after the debate last Wednesday night that we introduced a Bill which will do away with discrimination — the Domicile and Recognition of Divorces Bill — whereby not alone were women denied the same rights with regard to having recognition of divorce or obtaining divorce or having recognition of it but it was alleged that women were safe and protected now and it would be only with the oncoming of divorce legislation that somehow these poor fragile dependent creatures would be left open to irresponsible men who now, having the freedom to choose, would rush off and dump their first wives. We do a great insult to women and to men when we allege that that is the kind of caper we would believe of them and it does not say much for the kind of integrity we believe obtains in this country.
There is another point I would like to highlight. Labour colleagues have referred to the fact that it has been the policy of the Labour Party for some time to uphold, work for and campaign for a referendum on the introduction of divorce legislation in Ireland. I would like to remind my Fine Gael colleagues that it has been the policy of this party for some years as well. I can quote from Ard Fheiseanna since 1978 where our members, our grassroots supporters,  have consistently voted for Fine Gael in this House and the Seanad to take the leadership and the initiative and put to the country a referendum for the reintroduction of divorce. It is because of that that I welcome the Taoiseach's statement that a free vote must operate within our party and within the vote tomorrow night. He is quite right to do this on a matter of conscience like this and considering the number of Fine Gael supporters throughout the country who have shown again and again that they wish that such a referendum be supported.
I appeal to my Fine Gael colleagues to remember tomorrow night the expectations of our supporters also with regard to supporting a campaign and legislation to allow a referendum on divorce. We would be selling them short and adding a tremendous amount of disappointment to many of our supporters who swell the ranks of Fine Gael and perceive it as a progressive liberal party who would help and work to bring about a sense of justice, a sense of pluralism and a sense of civil rights in this country which are so acceptable in other countries that they are not even questioned. The only question we should ask tonight is why has it taken us so long? Do we honestly believe we live in a morally superior country where marriage breakdown does not occur, where we do not need legal remedies for the problems that breakdown brings about? I am reminded very often of one of the parables from my childhood days of learning what was then termed Christian doctrine. While I had to struggle theologically with problems of a rich man finding it as hard to enter Heaven as a camel through the eye of a needle, there is one parable that made absolute sense to me even in my young years. That is the one of the Publican and the Pharisee who visited their place of worship. the Pharisee, full of moral superiority, believing that he and his behaviour were better than the rest of men, strode right up and thanked his God that he was, fortunately, not like the rest of men. The Publican came in, remained at the bottom of the place of worship, humbly addressed his God, acknowledged his  frailty, sins and failures and asked for forgiveness. I am paraphrasing, but the parable ended by posing the question: which, in your mind, was the person nearer God and who would get salvation? I often think that we in this country parade around like the Pharisee saying: “Thank you, God, we are not like the rest of men, we do not have marriage breakdown, we do not need legal adjustments as to our system because we are better than others”. The greatest truth, maturity and justice we can achieve here is to recognise our frailties, support totally people who are going through such frailties, forgive and tolerate them, work to remove such frailties but, above all, have the honesty to acknowledge them. As legislators, the way we acknowledge them is by introducing instruments into this House that will allow people a legal, decent acknowledgment of an irretrievable breakdown of a marriage with which they have struggled. There is nobody in this House alleging or suggesting that we should have easy divorce.
Above all else — and I shall repeat this every time I talk about divorce or its introduction — we must remove the myth that goes abroad and which adds to the fear of right, decent-minded people who want to do the right thing, that somehow Ireland will find itself in some kind of a free Reno-style, jumped-into type divorce position, that as one walks down the aisle having been married one is thinking about where one will go to get a divorce. There is nobody in this House who would not agree with me on this, but it warrants repeating to give the lie to that kind of myth and fear. Nobody entering into marriage does so but with the highest level of trust, of wanting it to succeed, of wanting love to continue, of wanting the success and protection of a long-term relationship. When breakdown occurs the experience is filled with pain, trauma, a sense of failure and of guilt. As long as we in society do not recognise that breakdown, or refuse to give it legal acknowledgement, we add something else — a sense of failure, of non-acceptance in society. We alienate and isolate people. We make them feel they are beyond the pale of civil rights, of  legal acknowledgement in this country.
I might appeal again to my colleagues in Fine Gael to support this Bill. Nobody in Labour is suggesting that it is perfect, but it constitutes a beginning. It is the principle we are after. Even at this late hour — perhaps my madness has overcome me — I will yet again make an appeal to Fianna Fáil not to sit and abstain. Abstention in a situation like this is a total negation of everything for which we were elected, a total lack of acknowledgement of the pain, failure and breakdown of marriage that we know exist outside this House, and even among Members of this House. Once again I would appeal for leadership. It is not just good enough to hold a referendum within the lifetime of this Government, but if and when such a referendum is held I again hope that we do not once again sit on the fence and say: “Now, we will leave it to the electorate. Let them make up their minds. We withdraw. Politicians have no place in this any longer”. I want responsible, positive, caring legislators to go out and campaign for such a referendum. Only then will we be able to feel that we have a right to be in this House, that we have worked for society, for a justice expected by the people — and the polls are showing this — but on which they will reject us massively if we fail them.
Minister for Health (Mr. B. Desmond): The Labour Party, with some courage, have put forward this Bill to allow for the introduction of civil divorce. The party have done so because they are not prepared to behave like an ostrich before one of the most serious social issues of the day. I and my colleagues believe that the problem caused by marriage breakdown must be faced up to and resolved in a responsible way. This Bill has helped to concentrate the mind of this House and of public opinion on the need for action. In my view it has contributed to the growing consensus about the need to amend the Constitution to allow for civil divorce on certain conditions.
I do not — nor I am sure does any Member of this House — advocate  divorce for its own sake but because it offers the most reasonable solution to the increasing problems caused by marriage breakdown. No one with eyes to see can argue that the absence of divorce is preventing Irish marriages from breaking down. We may find it difficult to quantify the problem precisely, but anyone in contact with a broad cross-section of Irish people knows that breakdown is widespread and increasing. The fact that the number of women in receipt of deserted wives' allowances and benefit alone has doubled in the ten years since 1976 from 4,800 to 9,700 is, I suggest, an indication of a much wider social trend.
I want now to refer to the legal limbo. so eloquently dealt with by my colleagues, Deputies Taylor and Shatter, on a legal basis. I must refer to it particularly taking account of my experience over the past three years in the Departments of Health and Social Welfare, when there was an extraordinary cross-section of correspondence coming into those Departments relating to the position of women in particular who found themselves in that position. We know that the parties to a failed marriage find themselves in an extraordinary legal limbo. Take the example of a deserted wife who forms a new liaison and has a second family. She has no right to support from her new partner while he lives nor to succeed to his estate when he dies. She has no rights under the Family Home Protection Act and cannot obtain a barring order in the event of violence to her or to the children. If deserted, she is not entitled to the deserted wife's benefit or allowance and, if he dies, she is not eligible for a widow's pension. Her children by the second union are illegitimate with no succession rights to their father's property. The legal rights of the male partner to such a union are also severely limited. He has no right to inherit his partner's estate. He is not his children's legal guardian and cannot have his name on their birth certificates. I can bring anybody who wants to see the heartbreak that that can cause to meet the Ard-Chláraitheoir, who is Secretary of the Department of Health, when they  can have vivid proof of that kind of situation. Such a person, in the event of a second liaison, cannot establish his paternity of his children nor prevent his partner from placing them for adoption. His children are only entitled to maintenance if a court can prove the paternity of their father.
The State, by refusing to allow civil divorce is forcing such people into a legal cul-de-sac from which there is no escape for them or their children. The absence of divorce is not preventing marriages breaking down but it is creating serious discrimination against some families in this country. These may not be the families founded on marriage which the Constitution is pledged to uphold but they are families, nonetheless. A wise political scientist once said that politics does not solve problems, it only settles them. Legislation for civil divorce will not solve the problem of marital breakdown. What it will do is to settle the problems caused by the growing number of broken marriages.
Those who argue against divorce warn that the introduction of civil divorce will seriously weaken the commitment to marriage and to the family based on marriage. I do not find this argument convincing. No one has yet been able to identify any causal link between divorce and increased marriage breakdown. There is no question that many more marriages in the western world break down than they did a generation ago. However, this is the result of a complex interaction of social, economic, strongly educative and demographic factors which have fundamentally altered the role of marriage and the family in society. It is without question an aspect of the emancipation of women in society who have been in a framework of impossibility in terms of marital breakdown. Therefore legislation for civil divorce will not solve the problem of marital breakdown. These changes may have affected Ireland later in time but that they are with us now is without doubt. Divorce has followed these changes rather than initiated them.
The law on marriage, as is in so many other areas of Irish life, is out of step with  reality. The retarded nature of marriage law is inadequate to the situation. If we pass by this opportunity to amend it, what will happen is that the law on marriage will become increasingly irrelevant to a significant number of married people. Would we be happy about large numbers of people simply deciding to live together — producing children in many instances — without any legal status whatsoever?
I have sufficient confidence in the strength of marriage and family life in this country to argue that divorce will never be a remedy for more than a minority of Ireland's half a million marriages. We should take courage from the experience of Spain which shares with Ireland a firm attachment to Roman Catholic teaching on marriage and the family.
I met the Minister for Health in Spain and we argued about this point. When divorce was introduced in Spain three years ago there were widescale predictions that in the year following Spain would have about half a million divorces overnight. In the three years since divorce was introduced in Spain, some 50,000 couples have split up, well short of the 500,000 or so predicted by many.
What opponents of divorce also forget is that the majority of divorcees remarry. In other words, the attraction of marriage as an institution remains as strong as ever. The emphasis, however, is changing from an indissoluble union with one person for the rest of one's life to a union with one or more partners. In denying those whose marriages have irretrievably broken down the right of dissolution and remarriage, the State is imposing a grave injustice on a minority of Irish people. By failing to rectify this injustice the State is, in my view, actually weakening the institution of marriage by forcing those whose marriages have broken down into illegal, informal arrangements and by bringing the law into contempt.
The way we face this question of civil divorce has wider implications for our democracy. Divorce is a remedy of benefit to a minority whose marriages have irretrievably broken down. The minority Churches are in favour of civil divorce and considered the prohibition  in the Constitution discriminates against them. If we lift our heads and look northwards, there is a substantial minority on this island who live in a jurisdiction which permits divorce. We have the choice of continuing to enshrine the teaching of the majority faith in our Constitution or coming to terms with the rights and legitimate interests of the minority in this island.
Against the wishes and rights of the minority in respect of divorce are those of the majority faith shaped by the teaching of the Roman Catholic Church. Everyone accepts that the area of marriage and the family is of vital concern to the Catholic Church and indeed to all other Churches. I agree with the Taoiseach that the Catholic Hierarchy should be consulted about any changes proposed in marriage law. What I cannot accept is that the Catholic Church should hold a veto over the introduction of civil divorce to this country.
The anomalies caused by Church law on annulment — another name for the dissolution of marriage — cry out for a remedy. Since 1976 there have been, on average, between 95 and 100 Church annulments each year. These marriages are dissolved. In most cases the parties are free to marry again and the children of these marriages that never existed become illegitimate. Some of those whose marriages have been annulled have attempted to marry bigamously. We have already had the unseemly spectacle of a parish priest being convicted by a Circuit Court for officiating at a bigamous marriage. The conflict between canon and civil law cries out for resolution.
The Catholic Church has come to terms with divorce in every other country in Europe. It has come to terms with civil divorce in Northern Ireland. Is it too much to expect that it would come to terms with civil divorce in this jurisdiction? How long can the Church continue to insist that the State maintains an attitude to marriage that the Church itself does not even try to maintain?
This Bill, the Tenth Amendment of the Constitution Bill, proposes to modify the existing provision of the Constitution  which prohibits the Oireachtas from considering legislation on divorce. Under this Bill, the Oireachtas would be enabled to provide for civil divorce subject to three conditions, that the divorce could only be granted by a court, that the grounds for divorce would be irretrievable breakdown of the marriage and that the needs of a dependent spouse and children were met. These are important safeguards but I accept that more may be required. I agree with my colleague, Deputy Taylor, that the drafting of a Bill on which the people would be asked to vote in a constitutional referendum is a matter for a select committee of this House or these Houses.
Personally I would not like to see divorce permitted within the first two years of marriage. Divorce should not be an option to a couple in sorting out their initial marital difficulties. Nor do I think that a divorce should be granted until the parties to a marriage have been formally separated for at least five years. It is at the stage of formal separation that the often difficult and acrimonious arrangements about the maintenance of dependent spouses, the custody of the children and the division of property should be settled. It is at this difficult time that I see the mediation service recommended by the report of the Joint Committee on Marriage Breakdown playing a vital role in helping couples sort out the details of separation with as little bitterness and reproach as possible. Accordingly, I welcome the recent initiative of the Minister of State with responsibility for Women's Affairs, Deputy Fennell, in launching such a service on a pilot basis.
Therefore, I hope after some years of separation — what might be called a cooling off period — it would be open to a couple to seek a civil divorce from a matrimonial court on the grounds that their marriage has irretrievably broken down. The court would have the experience of the separation period to draw upon in determining whether or not a dependent spouse or children are adequately looked after. Where only one party seeks a divorce after the separation  period the court may also determine whether or not the marriage has irretrievably broken down. It will be important to ensure that the procedure for applying for and granting divorce is as free from rancour as possible. Accordingly, the recommendations of the Joint Committee on Marriage Breakdown are particularly valuable in this regard.
I appreciate that Deputy Coveney wishes to speak at this stage. I will conclude by simply making the point that in all this work — in the Departments of Health and Social Welfare I have met it every day, particularly in the past three years — we have to spend money in providing those basic services. Equally, this House has to face up to its responsibilities. I have no doubt that in the months ahead, irrespective of the outcome of the vote tomorrow night, we will face up to the appalling situation which exists. I am very pleased that Dáil Éireann is giving a lead on this matter and that the people of the country should be entitled to sign yes or no in a referendum. If this House gives the leadership, which we must give, the people will support reasonable proposals for civil divorce.
Mr. Coveney: I thank the Minister for giving me some time. I find myself in a difficult dilemma in relation to the Second Stage of this Bill. In principle, a referendum should be held to determine whether or not the people wish to have divorce legislation enacted and in what circumstances and with what safeguards. The Fine Gael party hold the same view. I would prefer if the Government introduced such important legislation rather than have it brought forward in Private Members' time. However, the Taoiseach has stated that he first wishes to enter into consultations with the Churches on the whole question of marriage breakdown, of which divorce is an important although certainly not the only element. At the conclusion of that process the Taoiseach will decide what legislation to present the Government and to this House. In the meantime he has agreed that Fine Gael Deputies should have a free vote on the Second Stage of this Bill  while at the same time recommending that we vote against it on the grounds that it is premature pending completion of the consultative process with the Churches.
Let me say, first of all, that I entirely accept the sincerity of the Taoiseach's position as well as his motivation. Nevertheless, I have to say that I am distinctly uneasy about the implications of voting against this Bill on Second Stage. It is right that wide consultations should take place with the Churches on this issue. I do not see, however, that there is anything to consult about in relation to the broad principle of holding a referendum on the subject of divorce, which is what the Second Stage debate is primarily about. The type of question to be put to the people in a referendum, the circumstances on which divorce might be granted, the safeguards to be built in and some other related matters are all areas of deep concern to the Churches as they are to all of us in this House and many outside of it. The passage of Second Stage would not seem to me to impinge in any way on this consultative process. In effect, the passing of Second Stage would simply signify a decision of this House, in principle, to give the people the right to choose in a referendum. If Second Stage is passed, the Bill will then move on to Committee Stage at some point, where every detail would have to be considered including points arising from the consultative process with the Churches and other groups. The resultant Bill will vary considerably from what is contained in it at this Stage. Greater safeguards should be built in and the circumstances in which divorce can and cannot be granted would need to be spelt out in much more detail. These are all matters proper to an in-depth, mature and rational debate on Committee Stage.
In that context and in view of the importance of the subject matter Committee Stage would be better dealt with by a committee of the whole House rather than by a special or select committee, because no Deputy should be denied a full say on Committee Stage of such an important Bill. Given the very  large number of important Bills at present before this House as well as the length of time necessary for Committee Stage itself, it is inconceivable that the Committee Stage could be completed for many months. In fact, effectively it cannot be started for several months. We have never had in the pipeline so much legislation, although that is probably normal in the third and fourth years of the life of a Parliament. That is the position we are in. There is no question of this Committee Stage starting or concluding quickly. The Taoiseach is extremely anxious to proceed quickly with the consultations already referred to. The likely time frame for a full committee debate does not seem incompatible with the timing of the Taoiseach's consultations with the Churches. In any case, this House would not agree to the completion of Committee Stage until after the fullest consultations with the Churches and others had ended and the results had been fully considered.
In summary, my position is that, while ideally I would prefer to wait the Government's own legislation, and I respect the Taoiseach's recommendation, the fact that we have a free vote, with the obligations that that places on individual Deputies, and that I do not believe that the consultative process would be adversely affected by a decision in principle of this House to putting the question of divorce to the people in a referendum compels me, in logic and in conscience, to support the Bill and I shall be doing that.
Mrs. Owen: I realise that I will not be able to get into the substantial part of what I would like to say on this Bill this evening. Suffice it for me to put down a benchmark this evening that I would like to contribute to this debate. Many Deputies have said that this is not perhaps the best forum in which to discuss a subject as serious as this. In many ways that is true. On the other hand, I have tried to listen to as much of the debate as possible so far and I have to say that the manner in which the debate is proceeding is helped by the fact that it is taking place in  Private Members' time when the strong party political pressures are lifted from Deputies who are freer and less encumbered in what they might say. Deputy O'Malley when he spoke — I notice he has not been around very much since to listen to the debate, although he is probably following it in the Official Report — warned that the Ireland of 50 years ago or indeed 20 years ago cannot be brought  back. That is a statement, quite frankly, that any of us could make, and it goes without saying that we cannot bring back the position of 50 or 20 years ago.
|Last Updated: 02/06/2011 11:55:53||Page of 139|