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, 26 February 1986
Dáil Eireann Debate
Mrs. Owen: I welcomed the opportunity to speak on this Bill and to contribute further to the wider debate which is taking place on this issue. This debate started in a uniquely Irish style in the early seventies with the introduction of the deserted wife's allowance. That was our first formal recognition that marriages break down in Ireland. The debate on this issue did not progress publicly for a number of years after that. Although we were acutely aware that more and more people were suffering from marriage breakdown, the debate did not have a public face. In 1978 a motion calling for a referendeum to remove the constitutional ban on divorce was put down at a Fine Gael Ard-Fheis. That opened up the public debate not only at a political level but in the wider public arena. We were accused of trying to bring about a reform of the law so as to introduce quickie divorces and bring about a complete breakdown of marriage as we know it. That was not the motive behind that motion. That motion was an effort to try to open the window, to open the shutters and allow for a sane mature debate on marriage breakdown and to find methods of how best to deal with it in justice.
This debate, under the enlightened reforming guidance of Deputy FitzGerald, progressed towards the point where we saw the setting up of an all-party  Oireachtas committee to examine marriage breakdown. Five years ago none of us would have expected that committee to exist. The debate has come forward in leaps and bounds in recent years. I refute the comment by Deputy O'Malley earlier in this debate that those who have postured longest and shouted longest on this issue are now anxious to postpone it. This is not an issue that could have been hurried or to which easy solutions could have been found. It must be dealt with sensitively and carefully and it involved the education of the legislators and the people as to the need for change. The way the debate has progressed in recent years has shown that the public and the legislators can no longer accept an ostrich-like stance on contentious issues. The time has come when both the legislators and the public expect action. We cannot continue to put off facing up to this issue by commissioning other reports and having other lengthy debates so that perhaps in five, ten or 15 years we might take action.
Much play has been made of the fact that we do not know the exact numbers suffering in this limbo of broken marriages. There are enough people for us to take action. It would be said if we got to the point in our democracy where we could only deal with problems and sensitive issues if a magic number of people were affected and we could not touch the issue if that magic figure was not affected. Would anybody in this House dare to suggest that because we only have thousands of people receiving blind pensions we should abolish them? Would anybody suggest that because there are only a few thousand travelling families we should not touch that issue? We should not get hung up on the numbers of people affected. It is enough that we know there is a problem which needs to be tackled sensitively and carefully by the Legislature.
Our democracy allows for special legislation for minority groups. Our democracy should be able to deal with people experiencing marriage breakdown and we should not fall apart because of it. We  should not pretend that it is like some contagious disease to be avoided at all costs lest we become contaminated. We are insulting the people to suggest that by dealing with this issue which will probably entail a limited form of divorce being available, everybody will want divorce. Many thousands of people have not the slightest intention of seeking divorce. Just because with the introduction of divorce some undeserving people will seek the facility it does not mean that we should put this issue off indefinitely.
While this Bill may not be the ideal way to tackle this issue, it is adding further to the wider debate. Many Deputies on this side will not vote for this Bill and some will vote for it, including myself. This party in maturity and consideration have agreed to allow their members a free vote. There is no covert Whip. Nobody has tried to insist that I change my mind since it became known that I intended to vote for this Bill. Nobody has used strong arm tactics. Many Deputies will not vote for this Bill, not because they do not see the need for a referendum and a change in the divorce law but because they have decided that they can reconcile themselves to waiting a little longer until the debate with the Churches is completed and until the Government introduce their own Bill. I respect their view. Neither backbenchers nor Cabinet members who decide not to vote for this Bill should be pilloried because they have changed their stance or liberal views on this issue.
Many Deputies will not vote for this Bill but will certainly vote when a Government Bill comes into the House. Therefore, I hope that in the same way as I will respect their views in sitting and not voting for this Bill, they will respect that, in all logic, if I am going to vote in a few months' time for a Bill to bring in a referendum, then I cannot decide logically in my mind that there is any sense in not voting for this Bill. The time has come to stop asking who is bringing this Bill in, whether we like him or do not like him, or whom will it damage. We should start to ask what we are doing, why we are doing it, whether it is right and just that we take action. We should  not be caught up in tactics and strategy. We should be talking about the justice of what we are doing and the rightness, the correctness, the need and the timing for doing it. The woman who finds herself having a stable relationship with a second person and her children who cannot understand why that man is not referred to as their father do not care who Deputy Mervyn Taylor is, whether he is Labour, Fianna Fáil or Fine Gael. All they know is that their situation is untenable and they are seeking from us, the legislators, some relief from that situation.
As many people want to speak on this, I will conclude by saying that I respect and understand why the Taoiseach is going to have discussions with the Churches. Let me say that, having sat on the Forum for a full year and having listened to the Episcopal Conference when they came to the Forum, I am certain that they will deal with the discussions with the Taoiseach with the compassion and understanding they exhibited at the Forum. I want to put on record some things that three bishops at that Forum said.
We have repeatedly declared that we in no way seek to have the moral teaching of the Catholic Church become the criterion of constitutional change or to have the principles of Catholic faith enshrined in civil law.
He went on to say that of course they had a duty and were bound to alert people who were Catholics to the consequences of any legislation “while leaving to the legislators and to the electorate their freedom to act in accordance with their consciences.” Talking about their duty as Catholic priests to instruct their flock, he said:
Nevertheless, we have never suggested that the moral considerations we advance are the only relevant considerations in respect of any proposed piece of legislation and we have consistently  stressed the rights and the responsibility of conscience.
Later during that submission by the Episcopal Conference Dr. Joseph Cassidy, talking in a very compassionate manner about people finding themselves in a marital vacuum and consigned to a life of loneliness and incompletion, said:
The crucial core question has to be faced ultimately by the legislators and the people because it is they who must decide. We ask that what we have to say, our teachings, our convictions in these matters be given serious weight and consideration.
I suggest to this House that the discussions which the Taoiseach has opened up with the Churches is giving the Churches a chance to have their points of view considered and perhaps included in legislation.
Later at the same conference in that same submission, Dr. O'Mahony, Auxiliary Bishop of Dublin, talked, again in a very compassionate way, about people who find themselves in marriage breakdown. He said:
So we accept that of those who are advocating divorce, many of them do so for caring, humanitarian reasons; also we accept that many of those who advocate divorce are aware of the social evils that result from divorce.
Those three quotations from three bishops reveal a compassion and understanding which I have no doubt will be mirrored and reflected in the discussions which our Taoiseach is to have. This House will be given an opportunity if this Bill does not pass here tonight — it is likely that it will not — to debate properly a Government Bill. I have pleasure tonight in supporting this Bill, as I feel it is the only logical step that I can take.
Proinsias De Rossa: Thank you, Sir, for the opportunity to speak in this debate. I thought that when the debate on the report ended the next occasion on which we would be debating this issue would be on the basis of a Government Bill before  the House. It was fairly clear that there was strong feeling among the Deputies who spoke to the report that the time had come for action and the time for talking about this issue in a general sense was over. That is the message I have been getting, virtually on a daily basis, from my constituents, from people who are trapped in marriages that have ended in everything but in name and who are denied the remedy because of the Article in the Constitution and the absence of divorce laws in this State.
Since coming into this House as a Deputy in 1982 I have been disappointed with the way the question of marriage breakdown has been avoided by successive Governments, not just by the present Coalition. An all-party committee on the Constitution discussed the issue in the sixties, yet 20 years later we appear to be not much nearer a resolution of the problems that many thousands of people face daily. While it could be said that the public expected little enough in terms of economic progress from the present Coalition, if the newspapers at the time were to be examined it would be seen that expectations were high that social issues, particularly marriage breakdown, would be dealt with and the present Government were elected to office on the basis of a firm commitment in their joint programme that, first of all, a committee to study the problem of marriage breakdown would be established within a very short time. However, the Government's record on the question of social issues and of marriage breakdown in particular has been abysmal in the way they have dodged and avoided them.
The Government were elected on a programme which included the commitment that a joint committee would be established to report on the problem of marriage breakdown by the end of 1983. We were told that no action could be taken to deal with the problem of marriage breakdown until that committee had reported. The committee were not established until the middle of 1983 and were then asked to report within 12 months, but the deadline for the report  by that committee was subsequently extended on four separate occasions. When eventually they reported last spring we were told that no action could be taken until the Dáil had discussed the report. The Dáil debate was delayed for, as far as I could see, as long as it possibly could be, but now that this has been concluded the debate has again been delayed and we are told that no action can be taken until the Taoiseach has consulted with the Churches.
We have had an all-party committee of the Dáil — by the way, they were not an all-party committee because, apart from the exclusion of The Workers' Party from that committee, other Independent Deputies were excluded also — sitting for a considerable time and inviting the views of everyone who had something to say on the question of marriage breakdown. A number of Churches made contributions to that committee and quite a large number of Church sub-organisations, so to speak, made contributions also. The Roman Catholic position in relation to divorce was well presented to the committee by a wide range of groups who hold the Roman Catholic position on divorce. Therefore, for the Taoiseach to come along at this point and say that we must wait until consultations have taken place with the Churches is a little hard to swallow. I wonder what excuse will be found at the end of March to say that it must be delayed for a further six or 12 months. Perhaps the weather will be bad, or there will be a bad harvest, or some other reasons will be found to ensure that the people will be denied an opportunity to express their opinion on whether divorce should or should not be legislated for by this House.
The Taoiseach's attitude, in particular, to this problem has been quite extraordinary. He has been quoted as saying that while he personally favours the removal of the ban on divorce he does not believe that a constitutional referendum to this effect would succeed at the present time. Incidentally, this is despite the fact that opinion polls have shown a distinct trend in the opposite direction. Recent opinion polls have shown that there is a growing  demand for divorce to be provided under certain circumstances. To say that a referendum would not be successful at this time is a classic case of leading from behind. Is it simply that the Taoiseach has no confidence in his own ability or the ability of his party to convince the electorate that this major social reform is necessary? It seems more likely that he knows that he cannot rely on the support of his own party on this issue and therefore is not prepared to risk his political career, irrespective of the misery of those trapped in broken marriages. It will be interesting to see tonight to what extent the Fine Gael party support the Labour Party Bill. It will indicate to what extent the Taoiseach can expect to win through on this issue within his own party, Fine Gael. If the debate on this Private Members' Bill serves no other purpose than that, it will have been well worthwhile.
This is the fourth attempt in the lifetime of this Dáil to initiate action to deal with this problem. Bills were tabled by the Labour Party in February 1982 and again in May 1984. However, we were not supported by Members of any of the other parties in the Dáil. Despite that, it must be acknowledged as progress that the Labour Party — and indeed some Fine Gael TDs — have come to accept that action is urgently needed and that it should not be postponed any longer. The Workers' Party will be voting for the Bill at the end of the debate on this Stage. It may be that if it does succeed in getting through to Committee Stage there may be some amendments to be proposed then. In order to have this debate progress, this Bill should be supported, not just by ourselves and the Labour Party and a number of Fine Gael Deputies, but by every Deputy. It is an issue which should be supported at this stage, regardless of the personal views of Deputies.
I was very much struck by the contribution made by Deputy McGahon in this House during the debate on the report of the committee. He quite clearly indicated that he was not all that keen on the idea of divorce but accepted the reality of marriage breakdown and accepted that  there was a need for legislators to deal with it and that we could not continue to avoid dealing with it. If other Deputies — and I address myself in particular to the Fianna Fáil Deputies — would take the same honest approach on this issue we would go a long way towards providing real political leadership to the people on this issue.
Marital breakdown is a real factor of life in Ireland as in other countries. It has been with us as long as marriage itself has been with us, although that has not been openly admitted in Ireland until quite recently. The problem of marital breakdown has been aggravated to an enormous extent by the pressures caused by large scale unemployment, inadequate housing, inadequate family support and a number of similar economic and social pressures.
It has been reliably estimated by the Divorce Action Group that up to 70,000 people in Ireland are involved directly in broken marriages. That figure has been interpreted by some to mean that it is 70,000 marriages that have broken down, but to my knowledge it is the figure quoting the number of people — men, women and children — who are affected by this problem. Recent statistics tell us that there are up to 9,000 women in receipt of the deserted wife's allowance and that they have approximately 15,000 dependants living with them. It must be assumed that a fairly large majority of those, if not all, had marriages which have irretrievably broken down. I know that there are cases where wives have been deserted and within 12 or 18 months or two years there has been a reconciliation, but in the majority of cases we must assume that where wives have applied for the deserted wife's allowance there is irretrievable breakdown. Refusing to recognise that reality does no service to those who are trapped in these broken marriage. It certainly does nothing to protect the well-being of the children who, through no fault of their own, find themselves with parents who, for whatever reason, cannot continue to live together as husband and wife or mother and father.
 Action is required by the State on two fronts, I would argue. First, there is a need to deal with the basic contributory causes of marriage breakdown. The State has responsibility in this regard in so far as it has the capacity to deal with the social and economic causes. Clearly it is not possible for the State to prevent marriage breakdown where this is as a result of personality clashes or some other personal reason. Very definitely, the State has a responsibility — and it has that responsibility under the Constitution — to ensure that, in so far as it is humanly possible, the services needed to protect family life are in place and that there should never be any reason for a marriage to break down because of economic or social pressures.
Secondly, there are measures necessary to deal with the reality of marriage breakdown itself. The partial remedies available, the Irish divorce style of barring orders, civil nullity and, indeed, Roman Catholic nullity and desertion, are highly unsatisfactory. They offer no protection at all to the parties involved. They offer no protection, in particular, to the children involved. Legislation is required which will allow divorce and which will also allow the civil right to re-marry and to provide for conciliation services to assist those involved to reach amicable settlements in the interest of all parties concerned.
I have argued a number of times in this House that when you strip away all the different arguments about divorce it boils down to whether the parties who separate should have the right to re-marry. There is no law that requires couples to remain together. Indeed, there are provisions in our law to enable couples to separate, to support wives who have been deserted by husbands, to provide that wives can be protected from husbands who are violent or in other ways unsatisfactory to live with — for instance, through barring orders.
When we are dealing with divorce we are not talking about the right to separate or of preventing marriage breakdown by refusing to introduce divorce. We are  talking about whether the State will provide for its citizens the right to remarry when marriage has broken down irretrievably. Divorce is not offered as a cure for marriage breakdown. No one I have spoken to who argues in favour of divorce has ever said divorce will stop marriage breakdown — it would be nonsense so to argue.
Nor can a sustainable argument be made that divorce causes marriage breakdown. We do not have divorce and still there are relatively many marriages that have broken down. Good divorce laws can only regulate the aftermath of a broken marriage in such a way as to minimise the distress and the trauma for all the parties involved — husbands, wives and particularly children.
The Workers' Party argue that effective divorce legislation must be based on a few basic principles. First of all, there must be the availability of mediation and conciliation procedures and families must be backed up by comprehensive family support services. We argue that irretrievable breakdown should be one of the basic grounds for divorce and that the legal process in divorce proceedings should be non-adversarial and that they should be carried out in family courts. We submit that proceedings should not apportion blame or penalise the parties involved but should be aimed at reaching as broad an agreement as possible on the issues outstanding between the parties. Most fundamentally, the interests of the children involved must be fully protected and take precedence over all other interests in such cases.
Earlier today there were references to courts, court costs and solicitors' fees. In divorce, the cost of the proceedings must not be such that ordinary people cannot avail of them. Indeed, legal aid should be available to those who cannot afford the services of solicitors.
All of the evidence from opinion polls shows that only a minority of people here are opposed to divorce in all circumstances. The most recent opinion poll strengthens this view and indicates that a significant majority are in favour of removing the constitutional ban on  divorce. Not for the first time, the majority of our people are ahead of most Deputies in their recognition of the urgent need for action to deal with this problem.
It is probably true to say that the issue of divorce has been so widely debated on the report of the joint committee and on this Bill that it is difficult to find any new arguments in relation to it. It is quite possible that many Deputies who have contributed to the debate have repeated a number of the arguments they had made previously, but people outside the House face the reality of marriage breakdown every day of the week and they have to suffer the misery of being trapped because either they cannot afford to get out of it or they have separated and formed new second relationships which in the eyes of the State are illegitimate. The children of such relationships are illegitimate and the partners in them are not treated as equal. All these problems exist because this House has failed to tackle marriage breakdown.
I will repeat a point I made earlier. Unless we are prepared to face the reality that when we are talking about marriage breakdown and the right to divorce we are talking about giving people the right, if they so choose, to remarry, I would say to people who do not think we should pass a law on divorce that they do so because they believe it would be a denial of their own religious beliefs or the belief of the majority of the people of the State.
I would emphasise that this House does not exist to put into law the religious beliefs of any Church or to enforce the law of divorce on anyone who does not believe that he or she should avail of it. We have a responsibility, however, to make it available to the people who want it, those who have no objections, religious or otherwise, to using the procedure of divorce. Those who do not think they can go through divorce proceedings will still have the right to avail of separation or barring orders or any other type of separation procedure available to them. The House is not in the business of forcing religious views on our citizens; but neither should we by default force  citizens to live in a regime which directly mirrors the views of the majority Church.
We are dealing here with Article 41 of the Constitution, or a section of it which relates to divorce and the right to remarry. There are many other sections of the Constitution which require amendment. They were referred to during the debate on the joint committee report. Those sections effectively treat the women of the country as second class citizens, effectively deny women the right to have a full working say in the life of a State, which treat them only as the begetters of children and nothing else, place a huge burden on them for the rearing of their children almost exclusively. In discussing this issue of divorce we are touching on part of our Constitution which in the long run should go much deeper than we have referred to in the debate on this Bill—the place of women in our society, their right to full equality not only on questions of social welfare and on labour laws but on their right to participate fully in the life of the State, their right to have the burden of rearing children shared by their spouses. The Constitution as at present formulated does not meet that requirement. The divorce debate should be seen as a prelude to a debate to formulate a totally new Constitution which would be relevant to the eighties.
Minister for Labour (Mr. Quinn): I will make my contribution as briefly and as succinctly as I can and I will structure it in the following manner. I want to talk about the role and relevance of the Oireachtas. I will then look at the question of marital breakdown, then turn to the issue of Church and State, look at the question of social change and opinion polls and finally look at the role of my party in relation to this matter.
This week many of us celebrated the re-emergence of democracy in the Philippines because we believe a society which is not democratic runs the risk of ultimately becoming tyrannical. This week many of us felt that another nation had joined the family of nations which can resolve their problems by discussion,  debate and persuasion, not by aggression. This week many young people heard leaders in this and other countries praise the return of democracy to the Philippines as something positive and good.
We believe a democratic State has the right and the capacity to solve problems in a humanitarian and caring way. Many of the problems facing this country at the moment are not easily solved. Many of the solutions to the problems which we as a Government face lie outside the territory of this State, outside the control of the Oireachtas but within the control of the cartels of international capitalism, whether it be the control of energy or other factors which a small open economy like ours cannot significantly control. But this is not one of those problems. We cannot say the EC is preventing us, that the price of oil is such that we cannot do anything to solve this problem. We cannot turn to anybody else and say we would if we could but we are being prevented by a strong external force.
I am asking Deputies — and I am glad to see that there are more and more of them — who are saying maybe, but not just yet, to recognise that the relevance of this House to the people outside this Chamber, and to the young people whom we implore not to follow the men of violence, will be enhanced only if it is seen that this House has the courage to take up this problem and try to resolve it.
I have always described myself politically as a Republican Socialist and I take great pride in the struggle for independence which successive generations, including members of my own family, put into the effort to achieve independence for this state. This generation has to earn that independence by exercising the independence which this sovereign State has and by resolving a problem which is real, which affects many people and which is totally within the power of the Oireachtas to resolve. In line with what Deputy De Rossa has just said, I suggest that so far we have tragically failed to do that. Thus we not only continue the difficulties and  the miseries for the many people who are caught in the problems of marital breakdown, but we are also weakening and undermining the credibility of this democratic institution.
It is not easy to get elected to Leinster House and it is even more difficult to stay in it and one does not stay here unless one does clinic work. Every Deputy and Senator will recognise that marital breakdown is not something that may nor may not occur in Ireland; marital breakdown is a reality and politically we deal with that reality every day. This debate has gone beyond the point of asking if it is relevant. There is not one Deputy in this House who can say that this is not a problem, whether in dealing with local authority housing, maintenance for deserted wives, and all the other work which makes up part of the daily workload of every TD.
There are legal complications which get in the way of people trying to put their lives together again after the tragedy of a marital breakdown. These legal complications continuously and effectively remind them of the tragedy they have experienced and in many cases prevent them from trying to rebuild a life for themselves and their children. We have power in the Oireachtas to remove those legal complications. We make the laws and we can unmake them, but in this instance we have to ask the people, through a referendum, to decide whether they will give us the freedom to deal with the reality of marital breakdown and the legal complications. That is all we are being asked to do this evening — to vote in principle that this issue should go to the people so that the constitutional barrier to divorce legislation can be removed. We talk a lot about the rights of democracies and the great liberties that democracy confers on people, but I find it extraordinary that we do not have the collective will or the collective courage to take that small, short step.
There have been numerous studies carried out since the mid-seventies, starting with the report prepared by an Attorney General, now Justice Declan Costello,  which looked at the legal problems relating to the question of marriage and marriage breakdown. There is now a clear consensus that, in order legally to bring to an end a marriage which is long since dead, divorce is the only legal mechanism that will meet all the rational and logical requirements that a modern State requires of its citizens. Therefore, the removal of the prohibition in the Constitution is absolutely essential. Any suggestion that there should be recognition of the annulments of some Churches means, in effect, the Roman Catholic Church because my understanding is that none of the other major Churches in the State, the Church of Ireland, the Methodist Church, the Presbyterian Church, the Baptist Church and the Jewish congregation, has provision for annulments.
This has been put forward as a compromise solution which would provide a legal framework to deal with some of the problems which arise consequent on marital breakdown while at the same time not introducing divorce. I leave it to more qualified people with legal experience to argue that case at length, but their conclusion is that it is not practicable and could not be enacted within the framework of law in this Republic. There is a need, undoubtedly, to introduce divorce legislation so that people whose marriages have broken down and who have no desire, because of personal religious convictions to enter into a new contract, can end the contract they originally entered into in their first and perhaps only marriage. We are preventing them from doing that at this moment. The Catholic Church in other states, where divorce is open and available, recommend to many of their people who find themselves in a breakdown situation where they are seeking annulment, that for purposes of legal tidiness and clarity as well as easement, they should obtain a civil divorce, the rights they get and the anomalies they remove are so essential.
Let me give one example that I recently had experience of. A woman who had been deserted approximately five years previously and after struggling to rear two children, now had the opportunity — she did not go into details — of going away on a fortnight's continental holiday. In order to do so she needed a passport for herself and for her children who were under the age of majority. In order to get the passport she had to get the consent of the father who could not be contacted. The difficulty of trying to get permission to get this passport is very hard to imagine. Deputy Andrews, who was a former Minister of State at the Department of Foreign Affairs, will be aware of the legal complexities in relation to the rights of parents and passports because he would have dealt with many such cases. It is another nightmare that is imposed. Just when a bit of happiness was about to arrive the tragedy of the broken marriage was again superimposed on a family who had started again.
We have gone on making the case for so long in relation to the need to deal with the problem that is real and, as Deputy De Rossa said, affects 70,000 people and probably more in the State and there is no need to go any further. The figures are well known and have been well publicised by a very responsible and reasoned lobby group, The Divorce Action Group.
I want to move from the question of marital breakdown to the relationship of Church and State. The Taoiseach indicated that he wishes to consult with the Churches about this matter. The Churches have a major role in relation to marriage laws in our society. In effect, they administer an aspect of civil law in so far as they conduct marriage ceremonies and record marriages in whatever church or synagogue they take place, so it is proper that they should be consulted because they have a role in that sense. The Churches are perfectly entitled to put forward any views they like in relation to this matter as this is a free and open society. As long as I have a role in public life it will be my primary responsibility to maintain it so. Irrespective of what view any Church group may put forward on behalf of their members or as an observation of how they think society should be, I do not think that view will in any way alter the absolute logic of the position of  the necessity of getting rid of the barrier within our Constitution by having a referendum whereby the people decide if they want to enable us to deal with that problem by removing the barrier.
There is an absolute necessity to make a reality, in perception terms as distinct from legal terms, of the separation of Church and State in this country for two reasons. We need to make the dream of an Irish Republic, which sustained so many generations of unfree Irishmen and women, a reality before the end of this century. We need to do it soon but we will only do it when we can clearly and effectively demonstrate to all the citizens of this State that this is the place where laws are made or unmade and churches are places where people go to pray and to conduct their religious beliefs with freedoms guaranteed by the Republican resolve of this assembly. We will not be able to do it until there is a clear distinction, not in the small print, not in the appendices to the reports, but in the reality of the perception of the ordinary man and woman in the work place, in the home or in the pub, that there is a separation between the two. That is not a very dangerous thing to be looking for and it is not putting any Irish citizen in mortal danger of whatever peril or fear worries them. It happens in France and people are not exactly in danger there. It happens in the United States and, if we are to believe what we read in some of the papers, half the Irish population want to go to the United States and they do not seem to be particularly worried about that there. It happens in most of the countries which we regard as being of a standard and of a level of social and economic development that we would like to aspire to.
I do not believe that what is proposed should in any way cause people to be afraid, whether they be young, old or members of religious orders. I know there are many people throughout the country, some young but many old, who are frightened and bemused by the social change that is occurring on this island. They find many of the things that now  happen difficult to comprehend, repugnant to their set of values and something that is alien, that is coming from other places and is not part of what was good, clear and decent in the Ireland they grew up in, whose construction they contributed towards and which they would now like to retire to with a degree of comfort and ease. I meet those people who are elderly or people who cannot understand how Dublin, which was once a safe city, is now unsafe, why there are things on television explicitly and openly that people did not even talk about ten, 15 or 20 years ago, and there is a reaction to try to block out all of this by saying: “It should go away, we should not have any of it, we are not like that, we are different, this is a separate State and we can keep that kind of thing away.”
The 70,000 Irish men, women and children we have been talking about are not aliens, they do not come in on the airwaves. They belong here, their roots are here, they will grow up here, they will work here and they will die here. They are citizens who are proud of the independence of this Republic, anxious to make a contribution legally, with dignity and with honour. Their numbers are not getting smaller, their pain is not getting any less and their dependence is totally in the hands of this House tonight. The Deputies will not do anything dramatic, radical or extraordinary because it will be a long road but they can send a positive signal, one they have not yet got loud enough or clear enough to make them feel that this democratic Republic might live up to its name, that this democratic State with elected politicians, whose power comes out of the ballot box and not out of the gun, can recognise problems, can discuss them, can take them in their hands, can look at them and say: “We can solve this. It will be difficult, it will offend, it may hurt, it will cause controversy but if it is a problem which exists within the State and affects so many people it is one that should be resolved. We will take the first step to try to resolve it by voting in the Oireachtas for a referendum to enable divorce legislation to be enacted.” The  fears of all the people who are worried about change who are worried about what will happen to the family, are very legitimate and very righteous fears but I believe they can be properly and competently accommodated.
The House might ask why it is that a party which is part of the Government — a Government which has a Joint Programme for Government which, as Deputy Nora Owen said, contained a commitment to establish the Committee on Marriage Breakdown — are in a position this evening, at the end of nearly six hours of Private Members' debating time, to move a Bill of this kind. This question has been asked and should be answered. There are two parties to this Government, both with their distinctive identities, with their own sets of policies, with freedom to take action outside the joint agreement for Government which both sides have honoured. The Labour Party were the first party to propose reform in this area; I recall being in this House between 1977 and 1981 when we had a debate on this very same topic within this very same time slot. We have consistently proposed reform in this area, and we will get more votes this evening than we got on that former occasion. I welcome that slow but steady advance. I should like to think there would be more.
I would suggest to the Leader of the Opposition that there is still plenty of time for those numbers to be increased. But the Labour Party role, of which I am proud, is as it has always been, to be in the forefront of advocating social change on logical grounds, because the necessity for that change is self-evident as far as we are concerned, in terms of the ordinary rank and file members who make up our party, or of the specialist groups within it, such as the Labour Women's National Council, the Labour Lawyers' Group, or any of the other component parts of the party which together have developed, from listening on the ground, a response that meets the requirements of a rational and adult national republican Parliament like this.
We decided to bring forward this Bill  at this stage because we feel that this issue should be advanced as quickly as possible. As Deputy Taylor said in his opening remarks, there is no contradiction in having consultations. It should be remembered that consultations form the bedrock of any democracy. There is no contradiction between, on the one hand, having consultations and, on the other, making progress, bearing in mind the procedural steps involved between voting positively in favour of this Bill this evening, going through the mechanics of a referendum and finally enacting divorce legislation on to our Statute Book.
I know there are other Deputies who wish to contribute to this debate. The last point I want to make is for those people who are genuinely worried that the fabric of Irish society will collapse should legal change be effected. I would remind them that such Catholic and cultural traditions, such Catholic societies as those in Spain, Portugal and Italy, with whom we have many connections and affinities, did not experience such an overall collapse in the fabric of their societies that many people predicted when they introduced the necessary legislation after a long debate and similar arguments.
I would address my last remark to that constituency which perhaps is so large that it inhibits the political freedom of many Deputies in this House, that that constituency can be reassured by what has happened in other neighbouring European states.
Miss Harney: I am pleased to have an opportunity to speak in this debate this evening albeit for a few short minutes. There is no point in any of us here congratulating ourselves in regard to the courage we have shown on this and other social matters. On all sides of this House we have shirked our responsibilities and swept this and other difficult social issues under the carpet. I have no doubt that if there were a secret vote in this House this evening this Bill would be carried by an overwhelming majority of perhaps up to 70 per cent. Unfortunately we will not have a vote of that kind. Instead, we will have what one party described as  a genuinely free vote, to which Deputy Owen referred earlier. If it is a genuinely free vote within the Fine Gael Party, am I to believe that there will be no more than a mere dozen Fine Gael Deputies who will vote in favour of this Bill this evening? Surely a party who for quite some time have had as a matter of policy the introduction of divorce legislation in this country can come up with a higher figure than 12? Equally, in relation to the major Opposition party, are we to hear that all the Deputies in that party are to be whipped into abstention? I know that in the Fianna Fáil Party in this House there are many Deputies who believe that divorce is necessary and that a referendum should be held. I would have wished that we could have had a genuinely free vote so that those Deputies could express their wishes this evening in a formal way.
Last week when speaking on this issue their Front Bench spokesman, Deputy Woods, said that the Fianna Fáil Party were not against the holding of a referendum. If they are not, then the only way we can have a referendum is by their supporting this Bill this evening. One of Deputy Woods' reservations in relation to this Bill was that he felt that if it went through foreign divorces, as we know them here, would no longer be recognised. For some people in Ireland it is all right to have a divorce once it takes place abroad but we must never touch it here.
Unfortunately, the kind of politics that have been engaged in in this country, particularly in this House in recent years on these difficult social issues, does no credit to any of us. I had the privilege to sit for 18 months on the all-party Committee on Marriage Breakdown. With the exception of the two Labour Party members and an Independent Senator, Senator Catherine McGuinness, none of the other members was in favour of that committee taking a decision in principle in favour of divorce. We fudged the issue, we put it back again. This evening it looks as if we, the politicians, will fudge it one more time.
As I came into this House this evening  I saw people outside with placards urging us to cop on to ourselves, to handle this difficult social issue. There is no Deputy on any side of this House who is not aware that marriage breakdown constitutes the major social problem in Ireland today. Divorce is not pleasant but it is necessary. If we want to fulfil our responsibilities, to show leadership, if we want to build a real Republic, if we want to convince those people in Northern Ireland to whom we preach so often about joining us, then we are afforded an opportunity this evening to show them that we really mean what we say.
Some Deputies have maintained that legislation affects the quality of marriage and so on. Divorce is freely available in Northern Ireland. Can anybody suggest that the quality of marriage in the North of Ireland is any less than the quality of marriage in the South? In so far as there are statistics available the indications are that there is a lesser degree of marriage breakdown north of the Border than there is in the South.
I believe that the consultations which the Taoiseach announced he wishes to engage in are no bad thing in themselves. Consultation is always a good thing. But I might remind the Taoiseach that the all-party committee consulted with all the Churches in this country. With the exception of one of the minority Churches and the majority Church, the Catholic Church, the other Churches were in favour of us proceeding along the road and introducing divorce legislation here as a civil right. When the Taoiseach talks about consultation he talks about consultation with the majority Church. That is no bad thing. I do not want to see a repeat of the bitter and divisive debate we have had in recent years. Those consultations can well take place side by side with this House endeavouring to come to terms with a formula to put before the people so that we can have divorce legislation some time in the next 18 months, or whenever.
If this Bill is beaten this evening I doubt very much if this Dáil will be given an opportunity within the next couple of years of voting on the issue again. We  are using it as a delaying tactic. We are copping out, we are failing to honour our responsibilities, to show that we have the leadership and courage required to tackle this difficult social issue.
I shall not delay much longer. I know I had only seven minutes or so. I see my constituency colleague, Deputy M. O'Leary waiting. I should like to congratulate him in that he introduced a Bill on his own some time before Christmas. Indeed had he not done so we might not have had the opportunity here this evening of discussing this matter. In our law we recognise that marriages break down. We have barring orders, provision for deserted wives, maintenance clauses by way of court procedures and so on. In all aspect of Irish law we recognise the fact, the reality that marriages are breaking down. Surely we can go one step further. We can be honest with ourselves and allow the people of this country an opportunity to vote on this matter in the next few weeks so that we as politicians can frame the necessary legislation that will ensure that the people, as a civil right, have this tragedy recognised. They should be allowed to live within the law and not be asked to continue to live in a legal limbo.
Minister for Education (Mr. Cooney): My intervention will be brief. Obviously one cannot go into the merits of the case. I put my views on record in the discussion on the report of the Joint Committee on Marriage Breakdown. I take this opportunity to deal with one net point arising from a question which the proposer of the Bill, Deputy Taylor, put to me. He said, “Why will you not support this Bill? Did you not say that you were in favour of an early referendum?” I did, but I said I was in favour of an early referendum in the context of legislation on this subject. It is no longer a question of asking the people to say yes or no to the removal of  a constitutional ban. What is involved is asking the people to say yes or no to the introduction of divorce legislation. Everyone knows that the removal of the constitutional ban will lead to the introduction of divorce. Consequently, if the people are to give a balanced judgment on this question they must know in advance of the referendum what type of legislation will follow on the removal of the ban. Anything short of that would be to perpetrate not quite a confidence trick on the people but could seriously mislead and misrepresent the final result of that referendum. I am in favour of an early referendum provided it is made very clear to the people what sort of legislation would follow if the constitutional ban were removed. The type of legislation proposed, and this is where we would have difficulty in agreeing on a formula, would obviously be of immense relevance to the electorate in deciding whether or not to remove the constitutional ban. That is why I feel I have to intervene in order to indicate why I am not supporting this measure, because it is merely asking for the removal of the constitutional ban without telling the people what legislation will follow.
Mr. M. O'Leary: I support this measure but not on the basis that I agree with the drafting of it because there are defects in the drafting. We have a safer majority and it would be more satisfactory to have a permanent veto through a referendum for any further changes that might be contemplated in this area in the future. In other words the legislation which I drafted in October and the legislation which I hope comes about if this Bill survives tonight will give back to the people their right to live as they choose.
The Taoiseach is having consultations with the various Churches, which is a good thing. I ask my Fine Gael colleagues not to refrain in their vote tonight for this measure simply because these consultations are taking place. Nobody expects the Taoiseach to reverse the decision of the Council of Trent. We think it is perfectly correct that he should consult with the Churches. We are all aware that the  church to which most of us belong has a settled view on the matter of divorce. To be fair to them, it is umambiguously set forth in the New Testament. We can all say, after the Vatican Council reports, that the position of a legislator who happens to be a Catholic is at last established. It was confirmed in the Forum Report, and legislators do not have to wait for the say so of any set of bishops before they set forth in good conscience to make legislation. I say to those Fine Gael Deputies who are refraining from voting for this measure tonight that they should not hesitate to vote for it. We can change this Bill at a later stage. There is much more support for this measure tonight than there was for my measure last October.
Mr. M. O'Leary: I appeal to Fine Gael Deputies and I hope that the Opposition will come off the fence because behaving in that sniggery, adolescent fashion, hoping that they will embarrass the Government by their silence, is not good enough for a measure as serious as this.
The Tánaiste: I want to begin these remarks with an appeal directed at all Members of this House, irrespective of their political affiliation. I want to appeal to those who believe that there are antiquated provisions in our Constitution, under a number of headings. I want to appeal to those who believe the time for changing these provisions is now and who have said so many times. I want to appeal to all who have encountered marital breakdown and its effects, in their own families, among their friends, and among the constituents they try to help on a daily basis. I want to appeal to all Members who have witnessed family violence or who have tried to help its victims.
I believe also that I should appeal to all the Members of this House who believe in the sanctity of marriage and to all those who believe that the efforts of  the State should be directed at supporting the family.
What I am appealing for is support, support for a measure that will have the effect of offering the Irish people the right to make the final choice on this question. This is not a Bill to provide divorce in Ireland. It goes no further than specifying a number of parameters, all of which it is proposed to write into the Constitution, within which the Oireachtas would have the power to legislate as it thought necessary.
Deputy Michael Woods, in replying to the opening speech in this debate of Deputy Mervyn Taylor, described the Bill as a vehicle for the introduction of divorce on demand. Such a statement proves only that Deputy Woods has not read the Bill. The safeguards written into our Bill are more than adequate to ensure that this will never be a jurisdiction in which divorce on demand is possible. It would not even be possible for the Oireachtas to legislate for divorce on demand if the changes we propose to the Constitution are adopted. Such a suggestion amounts to little more than a silly slur on our courts. But it also misses the whole point of the position the Labour Party have adopted in this debate. We have said, again and again, that there may be Deputies in this House who have anxieties and reservations about the number and validity of the safeguards we have provided. For such Deputies, there could be no better opportunity to improve the choice offered to the people than the special committee which would be established if this Bill were to pass Second Stage.
I would particularly appeal to those Fianna Fáil Deputies who must be becoming increasingly concerned at the posturing of their party in relation to social issues. It is not a legitimate position to adopt, whenever the happiness and welfare of people is at stake, to seek always to be on the winning side, to seek always opportunities of creating political embarrassment for others. Yet that seems to be the only position that Fianna Fáil are capable of and it has resulted in  an appalling history of fence-sitting and inactivity in these critical areas.
Deputy O'Malley, speaking in support of the Bill, stressed that the committee referred to should be a committee of the whole House. We would welcome such a decision and would co-operate fully in the work of that committee.
Deputy Dukes, speaking in his capacity as Minister for Justice, made the point that the Bill was not timely. I should perhaps mention that although Deputy Dukes may have been putting forward a view on behalf of his Department, he was not putting forward the settled view of the Government, since, as is well known, the Government have not taken any decision on this matter.
I find it baffling that anyone can seriously argue that this Bill is untimely, either in terms of the merits of the Bill, or in terms of the need to carry out any consultations with interested parties. We have made it plain that it is not our intention or wish to pre-empt any such consultations. Rather, it is our view that those consultations, especially if they were carried out in the full light of day, would make a beneficial contribution to the debate one would expect in a committee. A decision in principle by this House on Second Stage, which would be tantamount to a decision that legislation was necessary would, in turn, enable any external consultation to take place against a concrete, rather than an abstract, background.
It is possible to get the impression sometimes that the argument about timeliness can be a recipe for paralysis. We have a number of social issues in this country, all of them serious, and around which there appears to be the same sort of consensus — a consensus which can be summed up by saying: “We are all in favour of change, but not just yet.”
For instance, where the question of capital punishment is concerned, nobody has been hanged in this country for 30 years. There is a political consensus that we should not use this barbarous form of punishment, and still we retain a law providing for hanging sentences. The only consequence is that once, maybe  twice, in the lifetime of a Government, the 15 members of the Cabinet have to engage in the incongruous exercise of deciding whether or not to recommend to the President that somebody should be hanged. The only reason this law has survived so long is that no one ever seems to be able to suggest a right time to change it. How long more should we listen to that argument?
In regard to another issue, the question of racial hatred, it is a fact that there are organisations in this country which produce material, mostly for export to Britain, which has contributed in its own way to racial and anti-semitic hatred in that country. You would imagine that a country like ours, which has suffered its share of persecution over the years, would be moved to put a stop to such filth. Again the argument about timeliness raises its head — in a society which retains the right to ban books on sex education, this argument surely becomes more grotesque by the day.
I said earlier I found it difficult to understand this question of timeliness, in so far as it referred to the merits of the Labour Party Bill. We all know — everyone in this House knows — about the thousands of women who live in fear of violence in the home, and about the thousands of children who have been brutalised in situations of extreme family tension.
... the social and emotional costs of broken marriages are high...increasingly associated with physical and psychiatric disorders, of which depression is the most commonly cited...long term effects for children of broken marriages include increased risk of delinquency and of disruption in their own marriage.
Expert submissions such as the one I have quoted really only validate our own  experience, both as legislators and as constituency representatives. That experience shows us, in a way that none of us can deny, that marital breakdown is neither a middle-class nor a working-class phenomenon; it is not confined to urban or rural areas; its causes are not simple or easily addressed. That experience shows us too that marital breakdown is not any longer the problem of a small minority — it is a real, growing and urgent problem.
One of the consequences of the present situation, and everyone here has had experience of it, is the huge and growing number of relationships being formed which are in many cases long, loving, and stable relationships, but are nevertheless outside the law.
This has a number of effects; it gives rise to enormous problems for the children of such relationships; it generates extreme difficulty for dependent spouses, particularly in the case of the death of the other spouse. The laws relating to illegitimacy, property rights, and succession all bear heavily on such relationships.
Above all, the number of such relationships, the difficulties they encounter, and the fact that the number continues to grow despite these difficulties — all of these factors contribute to a widespread feeling that our present laws are in disrepute, and that this Oireachtas ought to be capable of legislating for reality. We would all like to think that we can legislate to maintain things as we like them but the world is changing around us, and if we lose the ability to face that fact, we will lose our relevance.
I read with interest the remarks of the Archbishop of Dublin in relation to this issue in his recent Lenten pastoral. Nobody in this House would disagree with the emphasis he places on proper preparation for marriage. Nobody would disagree with the list of factors he adduces which lead, almost certainly, to subsequent marital stress, including heavy drinking or gambling, drug addiction, crime, violence, infidelity, tantrums, jealousy, and psychiatric history.  Nobody would disagree with his recognition of the economic pressures that can impose an intolerable strain, including unemployment, low income, and inadequate housing.
It is a fact, though, that there are thousands of marriages where a variety of these stresses exist. It is a fact that our capacity to learn from the mistakes of the past — and there are many recommendations in the Oireachtas report that suggest we have that capacity — will not be of any relief to those who are trapped now. Yes, we do need action to ensure that people are not marrying too young. We need change to facilitate and encourage the task of proper preparation. We need proper counselling, advice and help for those who are under stress. But we must also face the reality that the only help we can offer to many is the possibility of a fresh start.
Let us not forget that in our present laws we can offer virtually everything else, albeit at a price. It is possible, in a variety of ways, to declare a marriage legally dead. But our laws stop short of the next logical step. The Church of Ireland put this well in their submission to the Oireachtas committee. They said:
The existing machinery suffers from the defect that it deals only with matters which, important and vital though they may be, are only ancillary to the root problem, that of status. Persons whose marriages have broken down and who have struggled through the complex legal machinery find themselves substantially poorer but without the one remedy which they really want, namely the freedom to remarry.
... we hold that blanket prohibition of divorce is also the cause of serious abuse, much personal suffering, and grave social injustice. Attempts to suppress recognition of this situation do nothing to promote well-ordered marriage and family life.
Thus, the nub of the issue — the real issue in this debate — is the right to  remarry. There is a real, pressing, and entirely legitimate demand for this right. It exists in most of the world, and it exists in societies where the family is valued, and where religious practice and belief are deeply rooted.
There will no doubt be a temptation to mollify this demand rather than to meet it. Such an approach would bring forward legislation on a wide front — to provide counselling and mediation services, to rationalise the position in relation to foreign divorces, to improve the law as it relates to nullity, to address the issues of illegitimacy and joint property rights.
All of this is necessary, but there is a real danger that it could be seen as an adequate substitute for addressing the most important issue. We do not want, and cannot afford, a situation where by manipulating the existing legal framework, we end up effectively with divorce for the rich. Neither can we afford the accusation that we have shirked the issue.
The Religious Society of Friends, in their submission to the Oireachtas committee, made the point that while they would welcome a change in the constitutional position, they felt strongly that divorce must always be seen as the last resort.
I feel the same way. Again and again since the first time I made a lengthy public statement on this issue I have emphasised the view of the Labour Party that any divorce law must be based on the concept of irretrievable breakdown. In 1983 I said:
In different societies, consideration of the question of irretrievable breakdown has given rise to examination of  the grounds which constitute such a breakdown. One common thread lies in the question of separation. Depending on the country, periods of separation ranging from one year to six or seven years, are recognised as establishing adequate grounds for claiming irretrievable breakdown.
One of the attractions of an approach such as this is that it removes from contention the issue of who is at fault. Like many of the organisations which made submissions to the Oireachtas committee I consider this of extreme importance.
A matrimonial breakdown is the failure of a relationship between spouses. Both spouses are responsible to various degrees. The law should reflect this and not try to assign fault and make orders as rewards for good behaviour.
The Tánaiste: ——and that is why I am spelling out my attitude, and that of my party, to the sort of divorce legislation which we would envisage if the Oireachtas were in a position to act. The time is right and that is why I commend this Bill.
De Rossa, Proinsias. McGahon, Brendan.
Mac Giolla, Tomás.
Birmingham, George Martin.
Conlon, John F.
Cooney, Patrick Mark.
Cosgrave, Liam T.
Cosgrave, Michael Joe.
Deasy, Martin Austin.
Durkan, Bernard J.
|Enright, Thomas W.
Farrelly, John V.
Noonan, Michael. (Limerick East)
Sheehan, Patrick Joseph.
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