An Bille um an Deichiú Leasú ar an mBunreacht, 1986: An Dara Céim (Atógáil). Tenth Amendment of the Constitution Bill, 1986: Second Stage (Resumed).

Friday, 16 May 1986

Dáil Eireann Debate
Vol. 366 No. 7

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Atairgeadh an cheist: “Go léifear an Bille an Dara Uair.”

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

Mr. Kelly: Information on John M. Kelly  Zoom on John M. Kelly  Last night I said that no-one likes to be positive on a subject like this. No-one can feel anything but diffident about it. I imagine that not many Deputies, even though they will be willing to disclose what they intend to do themselves, will be anxious to twist other people's arms to do so. Any such attempt will be futile. This is the kind of issue on which people will pretty well have made their minds up long before this Bill entered the House. Everyone has a difficulty in speaking on a theme like this. Everybody in the House is adult. The majority of the House are married and some are grandparents or certainly in the age group where they could be grandparents. They have all gathered experience of all kinds in life. Everybody metabolises his experiences differently depending on the character and the temperament which his own genetic inheritance and his own upbringing have left him with. Therefore we do not all have the same opinion about a matter like this. It is something that no-one can feel confident in lecturing other people about. I do not wish to say anything hurtful but I wonder how many Deputies there are who have spoken or will speak on the subject whose wives or husbands read with a grim and cynical eye what their [1357] spouses are purported as having said here on the subject of marriage. That consideration would prevent me from lecturing anyone on it and I hope it will prevent others from taking a lecturing stance.

I wish to explain but not at excessive length — I am not going to make a hog of myself with time because one Deputy spoke for an hour and three quarters yesterday and another for over an hour — why I will support this amendment but not on the broad general grounds which I have heard argued from those benches in the last couple of days. I would like to point out that the Constitution of this State, which is what we are talking about, contains very few positive prohibitions on what the Oireachtas may do. There is a general prohibition in Article 15 on the enactment of unconstitutional legislation. There are very few specific prohibitions otherwise. I can think of only two: the one we are talking about, the prohibition on the enactment of legislation to grant the dissolution of marriage, the other is a prohibition which was also in the 1922 Constitution and which corresponds with a conception of natural justice, namely, that one ought not apply a criminal sanction retroactively so as to punish somebody for an act which was not in fact criminal at the time it was committed.

Let us look back at the history of the State. The former Constitution — and I am a great admirer of it — was a secular Constitution. Not alone was religion not mentioned in it apart from a brief reference to everybody's freedom of worship but God was not mentioned in it anywhere. There was a brief invocation in the Act to which the Constitution was scheduled but the Constitution was entirely secular. It contained the specific prohibition on retroactive penal sanctions but it did not contain a prohibition on the enactment of divorce legislation. Did morality fall to pieces under William Cosgrave who was President of the Executive Council or Taoiseach for the first ten years of the State or under Éamon de Valera who was Taoiseach during the [1358] remaining five years of that Constitution's existence? Did we have the bacchanalia that I have heard being predicted by Deputies on both sides at a time when the Constitution contained no prohibition of any kind on the enactment of this kind of legislation? I am not going to make pretences about the period 1922-37. There was no divorce legislation enacted. At that time the only way one could have dissolved a marriage was by an Act of the Oireachtas. In Ireland there never had been a divorce jurisdiction. Under British rule there never was a divorce jurisdiction here under which the courts could dissolve a marriage. The early Irish, under the Brehon laws, had divorce very freely available — it was freely available to both sexes and there were a large number of humane grounds on which a wife was empowered to free herself from her husband. I will not entertain the House by reciting the instances.

So long as the common law here was influenced by Christianity there never was a divorce jurisdiction in the sense of a power in the courts to dissolve marriages, but there was a very strong feeling against divorce. It was so strong that in 1924 three private Bills were lodged with the Examiner in this House which proposed to dissolve three specific marriages — in other words, parliamentary divorce of a kind which had been necessary even in Britain since 1857. The outrage then, a kind of silent outrage, was so intense that the Bills had to be withdrawn. In other words, it was not the absence of a prohibition in the Constitution on divorce legislation that kept divorce off the table: it was the absolute repugnance of the population generally at the very thought of such a thing. It was public opinion, massive, cliff-like, immovable, that made the difference, not anything written in black and white.

That is what has changed. Much of the discussion on what is in black and white in the Constitution is beside the point because law is rather like a flimsy barrier, any form of law, including criminal law: it will withstand a certain pressure when it builds up like a build up of dammed waters, dammed opinion. However, it [1359] will not withstand any excessive pressure. The flood of opinion will simply roll over it and it will pass into a limbo like many of our laws because they were never enforced. I observe that this law already has passed into a sort of limbo. I know several couples both of whom were previously married to other people and who now, to all intents and purposes and as far as I know, are married to one another. No one asks how that can happen or how it happened: people are too well mannered to say, “Did you get divorce, where, and how, and what did it cost?” People have enough respect for each other's privacy to do that.

I can tell you that the water is running over the dam in a huge volume at this moment, perhaps not in every area in the country and not in every grade of society, but it is trickling through faster than a man's hand would be able to stop the hole in that dyke.

Most of us find it hard to accept change in the world we live in, the kind of society we had here in the early days of the State. When I was a schoolboy of 15 years I was standing around attentively with a group of others of my age when we were being visited by the Archbishop of Cashel in whose diocese the school was. I distinctly remember him saying, and I was amused at the reflection on the Irish people: “We enjoy an immunity, an isolation, from the outside world”. Looked at purely from the perspective of sexual morality, marital morality and all matters of that kind, of course he was right and I do not quarrel with his use of words. But the attitude that we were particularly favoured by God in our isolation I do not share. I have often spoken about the damage it has done to us in material respects that we do not know anything about let alone accept the standards of the outside world. The absence of possession of personal prosperity underlies a great many of the broken marriages we have been hearing about here this week.

As an even younger child I remember going, sometimes more than once a year, to a small village in the west of Ireland where my mother's people lived. The [1360] land for the golf club there had been given to the local people by the local Anglo-Irish landlord. Everybody in the little village was a member of the golf club, including the clergy. That local landlord donated a cup for competition to the golf club. Subsequently he went off to England — he may have lived in England — and was divorced, and the clergy of the village refused to play golf on the days when that cup was being competed for. I am not making fun of them. They felt it necessary, and their flock understood their feeling of necessity, to put a distance between them and the faintest contamination by a form of existence which they utterly rejected and which they were in duty bound to let their flock know they objected to.

I guess that most people here recall the kind of Ireland I am talking about, even those who are younger than I. I do not suppose I was different from most Deputies in having had a harmonious parental background: my parents lived harmoniously together for 40 years until they died in rapid succession. I appreciate the value of it because I can imagine the devastation it would have caused my brothers and me if the thing had gone to pieces. I believe absolutely what the bishops say about this, and they express it very well. I do not think it is any different from what most Deputies here would be able to record for themselves.

I have been speaking about a world in which these things were taken for granted, in which everybody existed in a comfortable environment. I regret the passing of that comfortable cat's cradle existence: everybody's aunts and uncles were married and stayed married; everybody's cousins were married and stayed married. Once in a blue moon — it happend in my family — some tearaway uncle might get married somewhere else and divorce the woman, or the other way around. Then his name was, shall we say, stricken from the family bible. He had visibly put something of a distance between himself and the rest of us.

That was the world of Dublin Opinion. I regret its passing to a new world in which cruelty and satirical skill and so [1361] forth are far more marketable than the kind of quiet fun which Dublin Opinion used to stand for. In Dublin Opinion's era my parents poked fun at an earlier generation whom they associated with great aunts and great uncles, the people of “Ballyscunnion”. People who used to read Dublin Opinion will remember that gentle, by no means cruel or non-respectful or contemptuous, portrayals of an even older Ireland.

That was the kind of cat's cradle we all grew up in. It is not anything in ours or anybody else's legislation that has changed that. It has changed because of a series of factors, pressures from the outside world, the communications explosion which gives people immediate electronic access to worlds of which they never dreamt —“Dallas”, “Dynasty” and worlds even in our own country to which people once did not aspire even if they were some steps up the socioeconomic ladder. They might have barely aspired to them or thought their children or grandchildren might one day reach them. This has been brought on by affluence not necessarily accompanied by the thrift that should go with it or the understanding of what makes affluence.

It has been accompanied also by younger marriages. That has happened everywhere. In the UK they have had divorce jurisdiction since 1857. Even though that divorce jurisdiction was there, divorce was very rare in Britain until the era of the Second World War or after it. The Second World War was the watershed because absences in the war put strain on marriages and because of people getting married very young because they thought they might not be alive in a week. After the war divorce figures began to climb steeply. They may have declined from a peak, but it took nearly 100 years for the divorce provision to be availed of massively in Britain. It became massively availed of because conditions had changed.

As I have said, that has happened here, too. I regret the passing of the days of William Cosgrave and Eamon de Valera and Dublin Opinion. I have nostalgia for that period. However, I cannot shut my [1362] eyes to what is happening around me. I do not say one should oppose a trend if one can intelligently oppose it, moderate it or steer it. One could do that, but I do not think the measure before us now does anything more than reflect something that is irreversible. As with many other matters, we have had here a timelag of 20 or 30 years before what happened to Britain has begun to hit us. There is always a timelag, near though the two islands are to each other. As I am constantly complaining in this House that we never seem to be ahead of them in legislation, we wait for 20 years and then copy what they have done. In architecture also the same timelag applies. One can be sure that an Irish Georgian house will have been built about 30 years later than a similar house in England. It is the same in moral attitudes.

I read the extract from the bishops statement published in The Irish Times two days ago and I find it impossible to disagree with anything in it. I am far from being a particularly pious person. I suppose I have the same difficulties as many other people; but I could not find it in me to make fun of, to belittle or even to disagree with most of what the bishops said. I do not think anyone on this side of the House disagrees with what was said. I accept that divorce is a dreadful event for children. I also accept that the introduction of a divorce jurisdiction will be progressive and that, even though we may only be introducing something here that is quite restrictive, the measure will be relaxed progressively. I expect that the next generation of Deputies will find the five-year wait intolerable and that perhaps the sons and daughters of the present Divorce Action Group will be pushing them to do something about the matter.

I accept also something I have heard Deputies on this side deny, namely, that once we have a divorce jurisdiction it changes radically the concept of marriage. As the law stands today, the word “marriage” cannot be defined except by reference to indissolubility. It is nothing if it is not indissoluble. I accept that it [1363] will undergo a kind of chemical transmutation. That is undeniable and it is impossible to quarrel with what the bishops have said in this regard.

There is only one thing I have to fault bishops for. It is the reason I propose to support the amendment with my vote in the ballot box; but I do that very diffidently, hoping I am not making a serious mistake and, above all, that I am not misleading others in what I say here today. The one point missing from the bishops' statement, and this is something that has weighed very strongly and decisively with me, is what is one to say to very young people who make a mistake. I do not go along with many of the broad spectrum views on this issue. In any event, I am not fanatical about it: I have tried to explain that I feel very far short of confident about it. I am not going to join any crusade or to propagandise about it. I do not see the matter in terms of a civil right, although I have heard Deputies on this side so describe it. I do not think that anyone looking at marriage as a contract, even in the most simple and most elementary form, could say that there is a civil right to dissolve a contract. There is the right to break it and to pay damages and there is the right, if both parties agree, to modify it or to withdraw from it. However, it is overselling the case for a Government Deputy to describe divorce as a civil right, although I accept that people in bad marriages feel that their rights are being trampled on. I do not see divorce as a remedy for marriage breakdown and I agree that probably it will cause as many breakdowns as it will remedy.

Above all, I do not see that this matter has anything to do with the North of Ireland, any more than I think we should clean up the litter on our streets because of the tourists. The argument that we have to change the law here to bring ourselves into line with the North or to disarm criticism from non-Catholics or those who think this is some kind of spiritual dictatorship run by the hierarchy, is wrong. We will run our affairs to please ourselves. I absolutely share the Taoiseach's [1364] feelings with regard to the North and entirely support everything he says about it — although I may have other differences with him — but I am not so eager for integration as to throw out laws that suit us in order to bring that day forward. I will leave the North and the question of civil rights out of calculation.

I was very sorry to hear the Minister for Health, Deputy Desmond, speak here yesterday about what he called the hypocrisy of a nullity jurisdiction. What is hypocritical about nullity? If the State had got off its bottom and done something about extending the civil nullity criteria sometime in the past 20 years, we probably would not be having this debate here. Nearly 20 years ago after the all-party Committee on the Constitution had reported — including a lucidrous recommendation that divorce should be permissible if one's religion permitted it; I never heard anything more discriminatory as between citizens — I wrote a series of articles at the end of 1967 and I remember urging that we should look at the nullity law essentially because a marriage or any other kind of contract is regarded and can be declared retrospectively as null and void if the parties have not had the proper capacity for forming the contract. A contract as important as marriage — a million times more important than a contract to buy a new suit — is null if somebody has been bullied into it, if their will has been overborne by duress, if their will has been side-tracked or deceived by fraud or if their will is infected by some kind of disability, lunacy or something approaching that which makes it impossible for them to form a serious intention. I would add to that list the state of immaturity. By extending the nullity law we could have freed a huge number of young people from the consequences of an early and quickly regretted mistake.

I am putting the whole matter on modest and much more narrow ground than I have heard argued here in the past few days. The only reason I will support the amendment is because if I voted “no” I would be saying no to the chance of young people who have made a mistake to have another try. I would be saying no [1365] to giving them another chance. I regret that the excellent statement in other respects from the bishops did not deal with that matter. Perhaps from the point of view of the Church it does not seem so urgent because in the Church nullity jurisdiction immaturity, a will that can be looked on as defective because it was not informed sufficiently and maturely, will often be grounds for a decree of nullity. Perhaps the Minister did not plan to use the word “hypocritical” in regard to nullity law. In any event it is quite out of place and is off the point. If we had done something about it at that time it would have rescued a huge proportion of the wrecked marriages about which we are now taking such drastic action.

Immaturity in regard to matrimony is a relative thing. People mature at different times. I hope what I say will not be regarded as an immoral or hedonistic point of view. I think the twenties are a priceless time of life and that period should be passed in liberty by both sexes. I do not mean in libertinism and I do not want to be misunderstood. Neither do I pass judgment on people's behaviour. But I think the twenties are a priceless time of life that time whittles away and destroys. To be young, adult and free, to go round the world, to get to know other women if one is a man and other men if one is a woman and to have experience of other people before one makes a serious decision with regard to marriage and, above all, to get to know oneself, all of these things are of priceless value. At the age of 20 people often have a false picture of themselves. There is no Member here of my age, which is 54 years or even ten years younger who would not look back on a frame of mind or opinions he held when he was 20 and who would not now think how innocent and simple or even arrogant he was at that time and hope he had a bit more sense now.

Many people, particularly women, get married in their early twenties. They are taking an awful risk as well as throwing away options in life which they may later regret not having exercised. Suppose a person aged 20 or 21 falls in love and [1366] marries, the strong statistical likelihood is that they will be in love two or three further times in their life with a lot of people. What will they do then? The Church's answer is that they will have to put up with it. It is easy to say that, but the flesh is very weak. It is not just the flesh because there are dimensions in the attraction of the sexes which far transcend the carnal.

Early adulthood should be a period of liberty, gathering experience and understanding oneself. One's heart must be twisted if one refuses to help those who marry in their twenties and find that they know themselves better later on and cannot make out with their partner. The earlier in their twenties they marry the truer that is. I cannot vote against this. I have always felt strongly on this subject. I do not want to use a word which may seem offensive to others who think otherwise, but it is terribly harsh to say to people of 22 or 23 years of age and who find that they have made a mistake: “That is it. You had your chance. You must stay in this human situation which you made for yourself, immature though your judgment may have been, and little though your knowledge of yourself may have been, for the rest of your life, be it 60 or 70 years.” It may be perfect heroic morality, but I cannot bring myself to believe the State should adopt that attitude.

Since the State has done nothing about nullity the only course open to me is not to vote against this proposal but to support it with the strong misgivings which I have outlined. I heard Deputies Flanagan, Glenn and Flynn in the course of their contributions yesterday predict that it would be defeated. If it is, I beg this Government or whatever other Government may be in power to do something quickly about nullity by extending the criteria for it along the lines I have suggested. This could be done within the Constitution without going to the people.

The last theme I wish to embark on is the performance of the Opposition in regard to this issue. I went into the Members' Bar yesterday evening. When [1367] I got in the door I could hear happy shouts of laughter. I thought perhaps there was an old Marx Brothers movie on television. I was not far wrong. It was Deputy Brian Lenihan explaining to the people of Ireland his party's position and explaining why his Leader was not here to make the case for himself. The laughter was as cheerfully joined in by a couple of his own colleagues in the bar as by the rest of us. I understand Deputy Haughey's position all too well. He has to keep in with everyone. I recognise the ethos of his party. It was trenchantly put by the man who was then Fianna Fáil Chief Whip, Deputy Ahern. I do not know if he realised he was being reported at a meeting for Fianna Fáil women. In The Irish Times there is a headline: Bertie Tells FF Women Sell Your Soul. I shall read two paragraphs from the article:

The Flurry Knox of Irish politics laid it on the line. Keep your balance. Keep well in with everybody. Say hello to your local TDs and Councillors even if you hate them and you might get nominated at your local convention.

Further on he says:

You have to walk the line. Take the middle ground. You may hate your TDs but you must do what is required. We all have to swallow humble pie and I have been doing it for years. But if you keep at it —

— this unremitting diet of humble pie —

——you can break through and get selected at the convention. If you do it the other way —

—in other words speak your mind like a free citizen of a Republic —

you haven't a chance.

That is Deputy Ahern's opinion. He did not take it from the wind. It is the political ethos in which he was brought up. If getting there means selling your soul a little bit, well there is not a profession in the world where you do not have to change your principles. If you play it right and keep your balance you can get to the convention. What an ambition — to [1368] submerge and extinguish every feeling and every instinct of truth and straightness if necessary. For what? To save your soul? No, to get through the convention. That is the priority in the party he belongs to. I understand his Leader accepts that priority. He has to keep in with all kinds of people if he is to sit on this side of the House again. He has to keep in with the Ballyscullion vote on the one hand and the Lower Leeson Street vote on the other which, by all accounts, is strongly represented in his party. It is not easy to do that on this issue.

Mr. Shatter: Information on Alan Shatter  Zoom on Alan Shatter  Will he be back before the end of June?

Mr. Kelly: Information on John M. Kelly  Zoom on John M. Kelly  I will come to that in a minute. It is easy for the Taoiseach to do the right thing. There are Deputies on the far side of the House, whose sincerity I do not question, who have said what they will do. The Taoiseach is supported by many people who belong to the Ballyscullion side of the world as well. I take it for granted he understands that he will be switching off a certain number of these by introducing this legislation. However, he is doing it because he believes it is right. That is not the ethos which was offered to the Fianna Fáil women in the Gresham Hotel by Deputy Ahern, presumably with the imprimatur of his Leader. He must keep in with both Lower Leeson Street and Ballyscullion. It is true the Ballyscullion people are dropping off the perch with the passage of years and the Lower Leeson Street people are becoming more numerous. Deputy Haughey would have looked around him at the Fianna Fáil Árd Fheis and would have seen enough gleaming pates among his audience to tell him that there was a bit of life left in Ballyscullion yet.

Mr. B. Desmond: Information on Barry Desmond  Zoom on Barry Desmond  I object. How dare you?

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  Where is Ballyscullion?

Mr. D. Andrews: Information on David Andrews  Zoom on David Andrews  In the old Dublin Opinion.

[1369]Mr. Kelly: Information on John M. Kelly  Zoom on John M. Kelly  I sympathise with his position. He is caught between his hillbillies and Hot Press. The cute thing for him to do is to lie low like Brer Fox. We suffered for a long time from absentee landlords, but we are now suffering from an absentee warlord — a man who likes being photographed from about 45 angles below so that the cock of the chin will be sufficient, caught in a pose which I thought went out of fashion in 1945 but which has been revived in this context at least. He likes being photographed at Bodenstown and in striking stances at the forum. I am singling him out only because he has singled himself out as the Leader of a party. No one asked him to be that. I suppose he put himself forward, but we need not go into that. If any other member of that party had acted in the same way I would say the same thing. That is not the conduct of a leader.

It was stated in The Irish Times that the Fianna Fáil Leader was having meaningful dialogue in Strasbourg. I presume it is in relation to intervention matters and pollution. He refused to say what his personal view was on the campaign to introduce divorce. He said his opinion was not relevant to this matter. Since when have we had this modesty — which would have sufficed to have St. Francis of Assisi canonised — from the Leader of Fianna Fáil? Since when have we had this modesty from the Leader of Fianna Fáil? Since when has he been slow to offer an opinion if he thought that he would get Ballyscullion and Lower Leeson Street both behind it?

Suppose we had a referendum here, for example, to delete Article 3 from the Constitution — another of the mementos which Mr. de Valera has left us with and which will, I suppose, take a little while longer to do away with — would he be as diffident about expressing an opinion on that? Can we suppose that if that were promoted here by this Government — and they would have very good, substantial reasons connected with Northern affairs for doing so — he would be in Strasbourg that week and would he keep away from that issue on the grounds that his view is not relevant? Which of his [1370] views is relevant? Would he make a list of the ones which are relevant for the people and of the ones which are not relevant and which he will allow us to overlook and ignore? He is very fond of awarding himself certificates for being mature and responsible when somebody takes him up on something he has said. He says: “No; that was a mature and responsible statement of mine.”

I would like to hear his mature and responsible opinions on this matter. Maybe he will turn up here — I know there are a few more hours left in the debate, and possibly he will, and I suppose I will then feel abashed at having dined richly off his absence. But if he does show up here and speak, I hope we will hear from him something more than we heard from his young colleague, Deputy Cowen, last night who delivered an excellently put together but intensely professorial treatment of the subject of divorce, and what would happen in this jurisdiction if it ever came in. He left us as wise as when he started in regard to how he personally is going to vote. I hope if Deputy Haughey does turn up, if his urgent duties contracted six weeks ago to Europeans permit him, he will actually tell us what he himself proposes to do.

I have nothing but contempt for that kind of attitude on the part of a political party, pretending to be neutral. That is the public official stance, although it is a contemptible stance from an alternative Government on a matter of this kind. As far as I can make out from their performance in here, their Deputies are all around the country visibly campaigning against this thing because they calculate that, by declaring themselves officially neutral, they will not lose much face if it is passed. But by busily working against it, if it is defeated, they can call on the Taoiseach to acknowledge that he has made a mistake so serious as to warrant his removal from office and an instant election. Those are only two sides of their position. If it was possible to take more than two sides, and of course it is but I do not want to hold the House up by expanding on it, they would take up as many as there were. It is not a case just [1371] of Tadhgín, an dá thaobh, it is a case of Séamaisín na sé taobh, and Seáinín na seacht dtaobh, and sleeveen gach uile thaobh. When I see that kind of thing in a party which once upon a time stood for something, whether it was right or wrong, I am reminded of the words from what Mr. Paisley would call the Good Book: “Since thou art neither hot nor cold, I will spit thee forth from my mouth”.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  How am I going to follow that act? I listened with interest to what Deputy Kelly had to say. He poured scorn on people who were neither hot nor cold. I would say that his own contribution was tepid in the extreme. He admitted that he felt tepid and vapid about the measure but when pushed would see fit to support it because of a number of instances involving young people. Our party represent 50 per cent of the country. Those Deputies on the opposite side of the House, by their loud laughter and their raucousness during Deputy Kelly's comments, did nothing to enhance the dignity of the debate we are engaged upon. Loud laughter when we are debating a social issue is very much out of place.

The Taoiseach: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  Deputy Haughey is not a social issue.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  I am talking about the debate and, whether the Taoiseach likes it or not, we are the largest party in the country and we have a right to discuss our views in this House. We also have a right to set out questions which we want answered and we have a right to get the information. The Government may not like that position but that is the situation. To dismiss with laughter any questions or fears people might have on an issue of this sort ill-becomes Government Deputies. Frankly, I have been quite appalled to hear the way it was addressed by the last speaker.

I was interested in the earlier part of his speech because it struck a chord in me. He talked about the apparently idyllic circumstances of life in the past for [1372] people of his generation and, indeed, my own generation — I am not much behind him. I wonder how many of these idyllic lives were really that under the surface. From reading and meeting with people of my own age group and from sharing our thoughts and experiences I know that our parents and many of our generation too when we were younger, went into marriage with high hopes. We looked upon marriage as a bright adventure where one would be fulfilled sexually, physically, spiritually and materially and where one would find a life of togetherness.

In the days of Cosgrave and de Valera it appeared, on the surface, that this was the case. I wonder how many women were suffering behind the scenes. I wonder how many women submerged their suffering in their devotion to their family and the rearing of their children, and gave up the hopes of a full communion of spirit and mind that they went into marriage expecting, and decided to put up with it and get on with their lives because the conventions of the day decided that one did not talk about that.

Times have changed and women, rightly, expect much more out of life. They work inside and outside the home and contribute much to a marriage contract both in their paid employment and in their unpaid unemployment and in the rearing of their children. They have a right to expect fulfilment in their married state because they are aware of their potential and have better educational and employment opportunities. Their own innermost feelings tell them that marriage is and should be a partnership which both partners work at to make it satisfactory. It is a good thing that women are beginning to assess themselves and come out of their traditional role which they went into with devotion but where they must have lost so much of their identity along the way and must have lost much of their vigour and their hope.

I do not share Deputy Kelly's viewpoint that the twenties are for roaming and for being free. One can be free and very much at liberty in a marriage which is enjoyable and which is a communion [1373] of spirits and minds. The implication of what Deputy Kelly said was that once one got married one was shackled. That was a wrong reflection on good marriages. He said one had to be free to roam and range and he linked that with the true meaning of liberty. That is completely wrong. Good marriages are free and open and frank and have all of those attributes in them. He said it was as a measure of his seeking nullity arrangements for young men and women who had got married too young and found they were not able to understand or cope with the difficulties that arose that he expressed those views. I regret that he chose to make fun of people in this very personal way. It is not a very kind attribute in anyone to make fun of people in the way he did.

The measure before us here today proposes to alter the Constitution. It is part of a whole process. In the sixties we had the all-party committee which came up with a recommendation which seems to have been quietly forgotten about. Then we had the all-party committee and we debated their findings at length in the Dáil. Various divorce proposals were introduced but we did not reach agreement on them. The point I am making is that this has been an ongoing debate. We have had this debate for the last three days and we will have it for two days next week.

I understood this debate was to be part of that ongoing educative process whereby questions would be asked and answered, dilemmas would be posed and people would truthfully try to find an answer to those dilemmas. But it appears we must come in here wearing a badge of certitude, that we must be like boy scouts or girl guides at an investiture ceremony, and that we only graduate summa cum laude if we can say with certainty what is the correct thing to do. This is the reason the people who wrote the Constitution decided that any changes must be decided by the people. How can any Deputy say with certitude that if this measure were passed it would materially change life for the better? How can we say with certainty that if it is not changed life will be worse than it was?

[1374]Mr. B. Desmond: Information on Barry Desmond  Zoom on Barry Desmond  That is why we were elected.

Dr. Woods: Information on Michael J. Woods  Zoom on Michael J. Woods  Let Deputy O'Rourke make her own speech.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  I came 80 miles this morning to contribute to this debate. I represent a constituency and I have a right——

Mr. B. Desmond: Information on Barry Desmond  Zoom on Barry Desmond  Pirouetting is unseemly.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  ——to state my point of view.

Mr. B. Desmond: Information on Barry Desmond  Zoom on Barry Desmond  If we ever get to hear it.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  I did not realise when coming in here this morning that one would have to wear one's point of view on one's pate or breastplate.

Mr. B. Desmond: Information on Barry Desmond  Zoom on Barry Desmond  What is the Deputy's point of view?

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  I will give my views on this constitutional amendment. I hope the Minister's certainty is echoed by all Deputies and people who support the Coalition parties. Deputy Kelly was admired and applauded for being in doubt, but it seems that Fianna Fáil cannot win. If we are neutral, we are wrong; if we are not neutral, we are wrong; if we are on the side of what might be seen as reactionary forces, we are wrong; and if we are seen to be on the side of liberalists, we are wrong too.

Mr. B. Desmond: Information on Barry Desmond  Zoom on Barry Desmond  The Deputy is still pirouetting.

Mrs. O'Rourke: Information on Mary O'Rourke  Zoom on Mary O'Rourke  No matter what we say or do, many people will say we are wrong but I am willing to put up with that.

I welcome this referendum. Is it not great that for once we are at one about something? On my way to the House this morning it struck me that very few rural Government Deputies have spoken on [1375] this debate, although we had contributions from what one might call a certain grouping of Government Deputies. However, all Deputies welcome the referendum because it means the people will be consulted. Under the 1937 Constitution any changes to be made in the Constitution first have to go to the people. It is not for politicians to decide, but for the people at large. The Article of the Constitution to be amended says that “no law should be enacted providing for the grant of a dissolution of marriage.” For that sentence we are inserting

2º Where, and only where, such court established under this Constitution as may be prescribed by law is satisfied that——

i. a marriage has failed,

Now I will deal with the questions which will be teased out on Committee Stage. Perhaps the Taoiseach will help to allay the many fears which have been expressed by people I meet who come to me as a Fianna Fáil Deputy, and particularly as a woman Deputy. I have, I hope, the right to put these questions fairly.

My first question deals with “i. a marriage has failed,”. Many marriages are for one reason or another deemed to have failed or are no longer ongoing; but I worry about the interpretation of the word “failed”. Would the marriage have failed physically, mentally spiritually or materially? The Government's stated intention is really for another day so we can only address ourselves to precisely what is in this Bill. It will be very difficult to interpret the word “failed” because the character of the people involved and the circumstances at the time have to be taken into account, and who knows if the marriage could be saved at a later time.

ii. the failure has continued for a period of, or periods amounting to, at least five years,

On the surface that appears to be a prohibitive statement. In my view the interpretation of i. would have a bearing on all four points.

[1376] iii. there is no reasonable possibility of reconciliation between the parties to the marriage, and

I wonder about that, too. There is talk in the Government document of mediation and conciliatory services which will be tied into the family court system. They will investigate the couple seeking the divorce to see if in the first instance they can bring about a reconciliation and, if that is not possible, to come to amenable arrangements on practical matters. It will be very difficult to interpret how the words “there is no reasonable possibility” because reconciliation involves a mediator and the couple. But human passions and emotions being what they are, what might seem to be irreconcilable at the time of mediation might be reconcilable at a later time.

iv. any other condition prescribed by law has been complied with,

the court may in accordance with law grant a dissolution of the marriage provided that the court is satisfied that adequate and proper provision having regard to the circumstances will be made for any dependant spouse and for any child of or any child who is dependent on either spouse.

At present in a legal separation the court allows for a maintenance order, sometimes attached to wages or sometimes paid into the court, and then there is provision for increasing that allowance if there is a change in the family circumstances or if the allowance is indexed to the cost of living. That is looked after under normal machinery but this legislation does not say if that arrangment will be subject to the usual court arrangments in other separation proceedings. Lacunas such as this have given rise to great fears about the nature and status of the dependent spouse if divorce is introduced.

The court arrangements rarely satisfy the full monetary needs of the spouse or children, but are made fairly according to the means of the person making the arrangement. No explanation is given here of the follow-on. In other words, if a man divorces a woman, or vice-versa,[1377] and the dependent spouse goes on to contract another marriage, as would be his or her right, what will be the place of the first spouse and their children in the financial arrangements of the spouse who has remarried? The statement of intent does not indicate the Government's intentions with regard to separations. I quote from that statement regarding financial orders:

The legislation will include provisions to enable the Family Court, on hearing an application for judicial separation or divorce, to make various financial orders with a view to ensuring that the interests of spouses and dependent children are adequately protected and appropriately provided for.

No follow-on arrangement is indicated. They are “appropriately provided for” at that time. But, as the years go by and the circumstances of the person change for good or ill, are the appropriate financial arrangements continued?

Part II of the Bill provides the framework for divorce. The statement of intent is not binding; it is the fleshing out of the provisions of the Bill. But people will realise that this is the document they will be voting upon. However, that is not really the case because, if divorce is introduced, then whatever arrangements will be made will be at the will of the Government of the day. This is the statement of intent of this Government; but it is not legally binding, and that should be made clear.

Of course, there are difficult cases, and nearly all Deputies who have spoken here in the last four days have commented on them. What I have not heard in the House I have heard in my office or on radio or have read in newspapers. Very few public representatives have not encountered cases such as Deputy Kelly mentioned of young men and women whose marriages have failed and who have half their life before them. A man who is very anti-divorce said to me last night, “Do you mean to tell me that there are women who would go through that rigmarole again?” I said, “Of course there are, because they want the intimacy, the life [1378] that they feel should be rightfully theirs and they want to enter it again with vigour and hope.” It is human nature to wish again to reach the perfect state. In difficult cases the persons are trapped. The Church after a long process may permit annulment of some marriages, but in the civil and legal sense the parties are not free to remarry. I have faulted Deputy Kelly, but the earlier part of his contribution contained a great deal of sense. He said there was great merit in an exploration of the nullity laws to see if they and the civil laws could in some way concur.

Our Constitution contemplates a lifelong contract; but of course matters have not always turned out like that, again because of human nature. If we all did exactly what was right according to the Constitution we would be living in an ideal world. It is ironic that the Bishops' pastoral is labelled Love is for Life. The ideal would be love for life, but unfortunately for some people it has not turned out to be so. That is why this is such a serious debate. It is a sensitive matter because we could be trampling on people's feelings. People had hopes, aspirations and dreams when they started out in marriage. Deputy Andrews referred to Portugal, Italy and Spain, mainly Catholic countries, which have brought in divorce. An evaluation of the effects of it in those countries has not yet been carried out. I regret that the Divorce Action Group have stated that the Church has no right to speak on this. I hope that that is not a portent of stridency in this debate. Of course the Church have every right to speak. It would be very strange if they did not state their point of view and then let the people decide. I admire a priest from my area who said last week, “That is our position but you have to make up your own minds about it.”

Arguments here should be based on practical considerations. We are told that divorce will, strictly speaking, change the definition of legal marriage. Have people already, by the way they have ordered, or perhaps misordered their lives not changed that definition? We face a difficult position. Society will have to make [1379] up its mind on this issue, basing its judgment on the balance between two factors. One factor is the scale and extent of marriage which is widespread and has traumatic effects. The other is the attested fact of the permanent nature and stability of Irish marriage. They are the issues which must be balanced against each other and judged. I am not satisfied that the consideration before us in this House is for the betterment of society.

The Taoiseach: Information on Garrett Fitzgerald  Zoom on Garrett Fitzgerald  The issue before us is itself relatively non-contentious: whether the people of this State should be permitted to express their opinion on the removal of the present constitutional bar on the dissolution of marriage. There would appear to be unanimity, or something very close to it, in this House on that proposition.

However, of course, it would be quite unreal to debate this issue without adverting, as many Deputies have done, to the merits of the proposition that is to be put before the people. As legislators elected by the people, we have, I believe, a duty of leadership in relation to this matter as we have in other matters; and we in the parties in Government are exercising this leadership by proposing a very restrictive form of divorce with a minimal impact on existing marriages, which will at the same time reduce the destabilising effect of marriage breakdown on society, so as to increase the stability of family life in our society.

On the merits of this proposition there are not merely deeply divided opinions; there are deeply divided approaches to the whole matter, involving the application of quite different criteria to the issue involved. The first of these approaches involves the application of the criterion of the social good. I believe that this is in fact the most important criteria that we should apply to this issue, because of the social nature of marriage itself. I have always held this view, and, indeed, I recall giving it particular emphasis in a speech I made almost nine years ago on the proposition, which I regarded as simplistic and incomplete, [1380]“that private morality is no concern of the law”. Because of the truncated character of the press release prepared in conjunction with that address, this speech appeared in an incomplete form in the press at that time, but it nevertheless represents an important part of my own approach to this matter.

A second approach emphasises the importance of respect for diversity of opinion and for freedom under the law. These are very important values which must command the respect of the State, in conjunction with the issue of the social good.

A third approach, distinguishable I believe from the second, emphasises the importance of compassion in human affairs. Despite the old adage that bad cases make bad law, we cannot ignore this human value, which must be given its place within the overall social good.

A fourth approach, which has the support of a minority here even though it has been repeatedly repudiated by the authorities of the Roman Catholic Church, is that the theology and law of that Church should be the foundation of, or even constitute the content of, the civil law of our State. While personally committed to the indissoluble character of sacramental marriage in the Church of which I am a member, I reject that approach, in common with the authorities of my Church and the vast majority of the Irish people.

In this debate we should try to disentangle these different approaches and to consider what weight should be given to each of them. Otherwise the debate could be a dialogue of the deaf, involving nothing more than repetitive re-assertions of extreme positions. On the one side there could be a series of reiterations of the “conservative” position, namely, that divorce is contrary to the theology, and at variance with the ecclesiastical law of the Roman Catholic Church, and that it would destabilise society — without any consideration of the alternative social danger that our society might be even more destabilised by a continuation of the present situation. On the other side there could be an equally tedious reiteration [1381] of the “liberal” position that there is an individual “right” to divorce — without regard either to the losses as well as gains involved for individuals, or to the possible social consequences of a change in the status quo.

I recognise that no single contribution to the discussion, nor even a sustained effort to secure rational debate, will necessarily succeed in an area that arouses such strong emotions on either side. But it is our duty in this House as elected leaders of opinion, responsible both for the common good and for the protection of individual rights, to attempt to place the debate on a rational level, and to follow, indeed, the good advice of the Roman Catholic Hierarchy that “in this debate opposing views should be fairly stated and honestly listened to and appraised”.

I should like to start by reviewing each of the approaches I have just mentioned. The principal proposition to which I want to address myself is that of the social good, for it is to this issue, I believe, that the voters in this referendum should direct their primary attention. Where lies the social or common good in this matter?

It lies first in the provision of the optimal conditions for the protection of marriage. This requires the introduction of a number of measures designed to minimise the number of unwise marriages with a high potential for failure. Towards this end it is proposed to raise the age of marriage to 18. I listened to the contributions of Deputy Kelly and Deputy O'Rourke and I agree with Deputy O'Rourke that early marriage need not confine one's liberty and relationships with other people. Marriage in which the partners are totally happy and faithful to each other helps to establish easier relationships with other people because their whole relationship with them is determined by virtue of that happy and stable marriage. If Deputy Kelly's view was pushed to its logical conclusion, it seems to be saying that anybody who got married under the age of 28 could have the marriage annulled on grounds of immaturity. I do not go along with that [1382] view: there has to be a reasonable age fixed for marriage. There is a consensus that the age of 18 is correct and, once that consensus is there, you cannot say that anyone over the age of 18 and under 28 can get a declaration of nullity. That makes nonsense of the concept of nullity and is, in fact, divorce.

Deputy O'Rourke spoke about trying to equate the Catholic Church's jurisdiction on nullity and that of the State. She must know that they cannot be equated because the grounds of nullity of the Roman Catholic Church includes grounds that could not be incorporated in the laws of the State, such as spirtual relationships, solemn vows, Holy Orders and so on. There are also other differences between the practices of Church and State in the case of remarriage of people, one of whom is a Catholic, who had a previous civil marriage, the dissolution of marriage on other grounds by the Church, which could not be fitted into the framework of civil legislation. This talk of extending the nullity jurisdiction is a red herring because, when one examines it carefully, one finds it does not provide a possible answer.

The age of 18 will apply in all but exceptional cases, which will help to reduce the number of imprudent and unduly early marriages. We also propose to provide — and, as far as I am aware, this is unique to our jurisdiction — for a minimum period of notification of marriage. The period proposed is three months. The purpose of this latter provision is to ensure that couples contemplating marriage have time to reflect beforehand and have time also to take advantage of one or other of the many excellent courses of preparation for marriage that are undertaken by several different voluntary agencies. These are very welcome because a very high proportion of young people, especially outside Dublin, attend these courses. It will also inhibit couples from entering hastily into marriage because of a pregnancy which can, in many instances, lead to unwise and ill-considered parental pressure for a speedy marriage, motivated by a concern for “respectability” and often with little [1383] regard to whether the couple are in fact suited to, and prepared for, a lifelong union in marriage. The Roman Catholic Church require a three month period for notification of marriage and have shown great wisdom in this regard. It is in response to and following their initiative that we propose to introduce this into civil law where it will find a proper place. These new provisions will, I believe, have the effect of reducing the proportion of marriages that fail because they are entered into in an immature way. Next it is proposed to increase financial provisions to assist voluntary agencies providing marriage counselling in cases of marital difficulties. In addition, the Government have started to provide, under the auspices of the Minister of State for Women's Affairs in my Department, a pilot family mediation scheme.

Furthermore, where a marriage is in such difficulties that a judicial separation is sought, a new procedure is to be established that will seek, in the first instance, to effect a reconciliation between the parties. This will be done through a new family court, which will have power to adjourn applications for a judicial separation in order to provide an opportunity for the parties to be helped to effect a reconciliation.

All these provisions, together with the present much improved availability of housing, are so designed, and will help to reduce the rate of marriage breakdown.

The second way in which the social or common good can be served in this matter is by seeking to minimise the trauma of separation and to provide improved protection for the dependent spouse and children. This too will be effected through the new family courts to be established. These courts, where they fail to effect a reconciliation between the spouses, will then provide a service to assist them to reach agreement in a non-confrontational manner on the terms of a separation. A counselling service will be provided for this purpose, using the resources of existing voluntary counselling services, if these services feel [1384] it appropriate to engage in this kind of work on behalf of the court, or of a State counselling service, linked to the court. The court will, before deciding a case, hear a report from the counselling service, indicating whether an agreement has been effected or, if not, upon what kind of terms the counselling service feel the separation should be effected. The parties will, of course, and must retain the right to be represented before the court, but the new system will, it is hoped, minimise considerably the confrontational elements that often mar such separation proceedings, which can be very damaging to the children of the marriage.

This family court whose proceedings will be in camera will also have powers additional to those at present vested in the courts that deal with such separation cases, including a power to divide property in favour of a dependent spouse and children. I should add it is intended that these courts be manned by judges specially assigned having regard to their suitability for work of this kind, who will sit in various parts of the country in order to facilitate people seeking judicial separations, or seeking to have separation agreements made rules of court.

All these measures will help, first, to protect marriages against breakdown and, second, to ensure that where a breakdown occurs the interests of children are protected by minimising confrontation between the spouses, and that better provision than at present will be made for dependent spouses and children. In these ways the social good will be served.

There remains the question of the provision to be made where a breakdown occurs followed by a separation which endures for a prolonged period leading to a situation where the marriage has clearly failed, with no reasonable possibility of a reconciliation. In such cases one or other party or both may have established, or may wish to establish, a union with another person. The question that arises at this point is whether in these circumstances the social interest is best served by refusing to recognise any such [1385] union, by refusing to provide appropriate legal rights to the partners to this union, and by refusing marital status to children of this union — I say “marital” rather than “legitimate” in the light of the recent publication of the Status of Children Bill. Or should we, as this amendment will make possible, permit re-marriage after marriage failure in certain restrictive circumstances? As Deputy O'Rourke said, women and men in circumstances of this kind in many cases will wish to make a further attempt to establish a new and happy relationship.

The circumstances in which re-marriage will be possible under this proposed constitutional amendment are, in fact, extremely restrictive.

First the court must be satisfied that the marriage has failed: not broken down — for what has broken down may be mended — but failed. We chose this word deliberately and with care, because it involves a sense of finality which no other word seems adequately to express. It is, for instance, much more final than breakdown, and also much more final than separation — for not all separations involve a failure of the marriage, and under this constitutional provision the court will have to be satisfied not merely that the proposed legal provision of five years' separation is met but that, in addition, the constitutional requirement of failure of the marriage for five years without any reasonable prospect of reconciliation is also met.

Moreover, this sense of finality is reinforced by the provision that the court must be satisfied that there is no reasonable possibility of a reconciliation of the parties to the marriage. It is difficult to conceive of a wording that would express more strongly than this the prerequisite that the marriage must be at an end in all but name before the court can permit it to be dissolved, thus giving the parties a right to re-marry.

The marriage must have failed for a period of or periods amounting to five years before the matter can even come before the court. The reasons for using the phrase, a period of or periods [1386] amounting to five years, is that the omission of the words “or periods” would be a strong disincentive to attempts at reconciliation during a period of separation prior to the application for a dissolution of the marriage, for such an attempt might have the effect of postponing the possibility of a dissolution for a further five years from that point. In cases like that, the legal advisers to the partners would certainly advise them against attempting a reconciliation because of its possible prejudicial effects on the ultimate possibility of a dissolution of the marriage. If this amendment is passed, there is no way in which a dissolution of a marriage could be provided for by law on any basis involving less than a five-year failure of the marriage. To change this provision would require a further referendum.

The fourth, and general provision, of this clause of the amendment, makes it possible for the Legislature to add further restrictive provisions in any law providing for the dissolution of marriage; it cannot constitutionally make possible any easing of the express conditions of five years failure and the absence of any reasonable possibility of reconciliation. Any suggestion to this effect is, to be blunt, dishonest.

It is argued that to make provision for the possibility of re-marriage, even under such restrictive conditions, will provide an incentive to marriages to break down, and will thus destabilise the institution of marriage. One cannot, of course, exclude the possibility that some marriages which might otherwise have survived, could fail because of the fact that one or other partner of such marriages is aware that, if such a failure occurs, and if a judicial separation is secured on one or other of the grounds laid down, then five years later he or she will be able to apply for a dissolution of the marriage which would make re-marriage possible.

In all common sense we must recognise that such cases, where an otherwise potentially successful marriage fails simply because of the existence of a possibility of re-marriage five years or more after the spouses have separated, will be few [1387] and far between. If the mere existence of such a possibility were to be regarded as an absolute obstacle to the provision of civil divorce, then in logic it should also be regarded as a reason for the Catholic Church not permitting Church decrees of nullity, or dissolutions of marriages where one or both parties are unbaptised. I understand that those dissolutions take place in this State in small numbers. More particularly it would be a reason for the Church not permitting the re-marriage in Church of people one or other of whom was previously married in a civil ceremony. For the existence of what is seen as a right to a Church marriage in such circumstances could be held to offer a positive incentive to a Catholic who lacks a lifelong commitment to a proposed marriage to arrange a civil ceremony with a view to having an easy let out.

Yet, rightly, none of these possibilities is seen by people as grounds for regarding these various Church procedures as destabilising marriage.

The argument that the existence of a very restrictive form of divorce, involving a five-year failure of a marriage and a five-year separation of the parties as a preliminary to re-marriage, will seriously destabilise the institution of marriage is thus difficult to sustain.

On the other side we have to set in the balance against this somewhat remote risk, the destabilising character of the existing marriage failure situation in our society, and the desirability of seeking some mitigation of this instability. All of us, not just in the cities but throughout the countryside, are aware of very many unrecognised unions involving people whose marriages have failed. In such cases under existing law any children born to the couple are illegitimate, and the dependent spouse has no legal rights.

Can we — have we the right to — ignore the number of such cases, the existence of which is known to us all? Can we ignore the fact that many such cases are known to the younger generation growing up today, who see, unhappily, their parents in some cases, or in others their parents' friends, or elder [1388] siblings or their friends, living in unions which are not recognised as marriages? Can we — have we the right to — ignore, the destabilising effect of the deprivation of rights of dependent spouses in these conditions? Can we ignore the destabilising psychological effects of these situations upon the children of such unions, growing up knowing that their parents' union is seen by State as well as Church as irregular and unrecognised?

I believe that we cannot ignore these realities. To ignore this side of the equation, to fail to address it at all, is not to state fairly the issues involved. It is our task in this House to state these issues fairly, to face them, and to make our judgment on the balance of social stability as between the present situation and the situation that would exist if restrictive divorce along the lines contemplated in this amendment were introduced.

And unless we come to a very firm conclusion that the — as I would see them somewhat remote — destabilising effects of a restrictive civil divorce procedure will clearly and significantly outweigh the restabilising effect of such a procedure in a society where so many second unions now exist without civil recognition, we must also bring into the balance the other considerations I adverted to earlier, namely the importance of respect for diversity of opinion and for freedom, and compassion for those whose marriages have failed with no reasonable possibility of a reconciliation and who have entered into, or wish to enter into, a second union.

It is on the basis of our assessment of the balance of all these considerations, taken together, and excluding totally the suggestion — rejected by the Catholic Church authorities themselves — that the theology and law of one Church should govern our civil law, that we in this House should make our minds up about this amendment, and advise the electorate accordingly of our conclusions. This is part of our responsibility as elected representatives, part of what we were elected for by people to represent them in this House.

[1389] For my part I am quite clear where the balance lies, and on what I should recommend to those voting in this referendum. First, I believe that the introduction of the legal measures proposed by the Government — the raising of the age of marriage, the requirement of three months' notice of marriage, the additional provision for counselling and the role of the new family court in seeking, in the case of applications for judicial separations, to encourage a reconciliation between the parties, will all help to improve the stability of marriage.

Second, I believe that the new procedures for handling judicial separation applications in the family court, when the court fails to secure a reconciliation between the parties, will reduce the confrontational element that exists at present in many such cases, with adverse effects particularly on children of the marriage, and will improve the protection of the dependent spouse and dependent children by giving them the right to claim for proper provision from family property.

Third, I do not believe that the very restrictive form of divorce that will be permitted by this amendment will have a significantly destabilising effect on marriage — any more than I believe that the different but also restrictive provisions for re-marriage under the ecclesiastical law of the Catholic Church have such an effect.

Fourth, I believe that the existence of this restrictive form of divorce will reduce the number of unrecognised unions that now exist, in which a dependent partner has no rights, and the children are not marital children, and that by so doing we will diminish perceptibly the instability that has crept into our society with the rapid growth in the number of such unions.

And fifth, I believe that, given that the balance of stability in society will be enhanced rather than reduced by such measures, we can properly have regard also to the enhancement of respect for diversity of opinion and for freedom which this measure will also bring with it, as well as to the fact that this measure [1390] has a compassionate aspect that is appropriate to a caring society.

Finally, there are a couple of points that have arisen in the discussion that has already taken place on this matter that I would like to clarify.

The children of the first marriage remain the children of a family founded on marriage, with full rights under the Succession Act. The contrary has been stated incorrectly in this House. Moreover, the dependent spouse has her or his interests protected better than at present, at two different stages. First, when a judicial separation is sought, she or he will have a right to apply for a share in the property of the other spouse, in addition to all the rights that at present may accrue to such a dependent spouse in such proceedings. Thus, in future, she or he will have a right to claim for proper provision from the family property. And, second, if a divorce is sought, the whole question of the rights of a dependent spouse and children will be fully reviewed by the family court, which can only give a divorce if it is satisfied that adequate and proper provision in the circumstances will be made for the dependent spouse and children, and which, before taking its decision, will review the outcome of whatever arrangements were made under the earlier separation order. There will be an opportunity there to establish whether in fact that order has worked and is achieving the effect intended.

I hope, therefore, that the attempt to suggest that the rights of the “first family” are adversely affected, when they are in fact being enhanced, will now be dropped in this debate.

Next I want to deal with the financial role of the State. As the Minister for Social Welfare explained yesterday, the social welfare system will be available in the most suitable and amenable way to individuals and families who may be involved in the divorce process, although, of course, the primary responsibility for the support of a dependent spouse and dependent children will rest with the other partner to the marriage. No dissolution of a marriage with a right of re-marriage will be constitutionally possible [1391] unless adequate and proper provision is made for a dependent spouse and dependent children.

I hope that this clarification of these matters will remove any concerns that may have been aroused by alarmist statements made in the course of this debate, and that the discussion of this whole matter can now proceed in a dispassionate and balanced way.

Our people are entitled to such a mature discussion in their Parliament. They are entitled to the considered advice of their legislators as to the impact of this constitutional amendment on marriage and on our society. Our party have determined that they will have the benefit of this advice, and that in the public discussion that will follow the passing of this amendment by the Houses of the Oireachtas, we shall give the necessary leadership to ensure that the electorate can themselves deliver a balanced verdict on the proposal being submitted for their decision.

In conclusion, I believe that this debate has also an importance that extends outside the boundaries of this State. The type of provision we are proposing to make for divorce takes account of lessons to be learned from other countries, and may, I believe, come to be seen elsewhere as a balanced and mature approach to a difficult problem. This debate, and the subsequent wider public discussion, together with the eventual decision taken by the people of this State, will, of course, be watched particularly closely by people of both traditions in Northern Ireland, many of whom will, I believe, be influenced to a degree in their attitude towards this State and towards each other by the manner in which we act in this matter.

That will not be a primary consideration when this matter is put to the test. But it should not be ignored either. And to the extent that electors conclude that this proposal should be adopted on its own merits to meet the social needs of this State, to that extent they will also be helping incidentally the relationship between North and South and between the communities in Northern Ireland. At [1392] a time when the situation in Northern Ireland is so delicately balanced this is not something we can reasonably ignore.

I commend this measure to the House.

Mr. N. Treacy: Information on Noel Treacy  Zoom on Noel Treacy  At the outset I want to say that I shall be speaking on this matter on a personal basis and I shall be giving what I feel to be the exact position in accordance with my perception. Second, I believe this is a matter totally for the people to make up their own minds on. I have every confidence that they will arrive at a wise, mature and positive decision.

I want to make my position quite clear, that is, that I am personally opposed to this Bill being enacted at this time. I believe it to be premature, introduced for the wrong reasons and in haste, without the agencies of the State having been afforded an opportunity to carry out an exhaustive and thorough investigation of the difficulties of people with marital problems, how they can have their difficulties reconciled with the assistance of the State, which, under our Constitution, has a fundamental duty to protect individual citizens and the family unit in our society.

I recognise that there are anomalies between the laws of all the Churches and the civil law on this island. I recognise also that it is a minority of people who find themselves in marital difficulties. I emphasise that point. We must all recognise that the vast majority of people on this island have a happy, stable marital relationship. But, in modern times, this has been cast aside, ignored as though the nation had no duty to preserve and protect the family unit in our society. I sincerely regret that that should be the case. We must ensure that the family unit is held up as the natural, proper base from which society can grow in a humane, balanced way.

What worries me is that we are discussing a measure such as this without knowledge of the exact magnitude of the problem and its effects on the country. We also do not know the number of people who find themselves in this sad, difficult situation. What is the exact [1393] extent of marital breakdown? In 1983 a Labour Court survey indicated that about 21,000 families were affected. In an effort to make a case for the enactment of this measure and to change our Constitution, the Divorce Action Group speak about 70,000 people being affected. Of course, they include in that number parents and children. It would seem that there are perhaps 30,000 families affected by marital breakdown. We are not sure and that is our difficulty. That is why we must question the wisdom of the Taoiseach and the Government in proceeding with this proposal at this time. The most detailed Census of Population in the history of the State has just been completed and it is a wonder that time was not taken to consider the resulting statistics before proceeding with the proposal and foisting it on the people——

Mr. Skelly: Information on Liam Skelly  Zoom on Liam Skelly  How long does the Deputy want to delay? How many breakdowns does the Deputy want?

Mr. N. Treacy: Information on Noel Treacy  Zoom on Noel Treacy  ——without giving them or the politicians or the State agencies an opportunity——

Mr. Skelly: Information on Liam Skelly  Zoom on Liam Skelly  Will the Deputy stop at 150,000 families, or 200,000 families?

Mr. N. Treacy: Information on Noel Treacy  Zoom on Noel Treacy  ——to examine the exact situation and come up with solutions which will ameliorate the position of those who find themselves in difficulties. I sympathise with them and regret their situation.

Mr. Skelly: Information on Liam Skelly  Zoom on Liam Skelly  What is the Deputy going to do about it?

An Leas-Cheann Comhairle: Information on John J. Ryan  Zoom on John J. Ryan  Deputy Skelly, please.

Mr. N. Treacy: Information on Noel Treacy  Zoom on Noel Treacy  I know at first hand of a small number of people in my constituency whom I, as their public representative, have tried to help in their difficulties over the last three and a half years. I am not saying we should wait until there are 100,000 families affected, or even one more. I am saying we should not rush to [1394] alter the Constitution without ensuring that the resulting legislation will give protection to those who have to break their marital contracts, to separate and, in certain circumstances, have no option but to leave their family home.

We have not progressed in this area and that is the failure of all Governments, but particularly this Government who have been obsessed since coming into office with attempting to create a more liberalised society. The Taoiseach has been on a liberalisation crusade since becoming Leader of the main party in Coalition. Why did the Government not wait until the results of the census were available to the legislators and the people of this island? Proposals could then be put before the House which could alleviate the plight of those who are sadly affected.

Mr. Skelly: Information on Liam Skelly  Zoom on Liam Skelly  What sort of proposals?

Mr. N. Treacy: Information on Noel Treacy  Zoom on Noel Treacy  I want to welcome in the Government's statement a reference to their intentions with regard to family courts. However, can that not be brought about without amending the Constitution? There is nothing to prevent the bringing forward of such legislation and having proper, educated, qualified social workers available in the Department of Social Welfare and in the health boards to help people in this misery.

Mrs. Barnes: Information on Monica Barnes  Zoom on Monica Barnes  To allow them to re-marry?

Mr. N. Treacy: Information on Noel Treacy  Zoom on Noel Treacy  There is nothing preventing the Government from ensuring proper financial assistance and proper legal protection for the partners and children in those marital circumstances.

Mrs. Barnes: Information on Monica Barnes  Zoom on Monica Barnes  But there is legal acknowledgment now.

An Leas-Cheann Comhairle: Information on John J. Ryan  Zoom on John J. Ryan  Deputy Barnes, you will be speaking later.

Mr. N. Treacy: Information on Noel Treacy  Zoom on Noel Treacy  The Deputy will get her opportunity to speak. We know where she stands. Since coming into this [1395] House she has been one of those who have been trying to get the Leader of the Government to destabilise the whole marital structure of this country. I am entitled to give my point of view and the Deputy will not impede me in putting my point of view across to this House, as an elected representative on behalf of those I represent.

Mr. Skelly: Information on Liam Skelly  Zoom on Liam Skelly  The Fianna Fáil Party electorate.

(Interruptions.)

Mr. N. Treacy: Information on Noel Treacy  Zoom on Noel Treacy  Listen to Deputy Skelly. He is speaking with his background and for his locality. We are speaking for all the people of this island, not wanting to legislate for any particular section. We must ensure that the legislation being brought in is fair and has equal effect on all, that it will provide equal protection and opportunity.

Mr. Skelly: Information on Liam Skelly  Zoom on Liam Skelly  We know where the Deputy stands.

Mr. N. Treacy: Information on Noel Treacy  Zoom on Noel Treacy  I am disappointed that Deputy Skelly cannot listen attentively to what I have to say.

Mr. Skelly: Information on Liam Skelly  Zoom on Liam Skelly  It is very difficult.

Mr. N. Treacy: Information on Noel Treacy  Zoom on Noel Treacy  We have seen the Government bring forward this rushed proposal without taking due cognisance of the population census and leaving no opportunity to compute and analyse those results and see the exact situation with regard to marital difficulties. This is very confusing for the Members of this House and the people and puts them in an invidious situation. The Taoiseach spoke this morning about leadership, as did the Minister for Health last night and Deputy Kelly. We are all leaders in our own communities. As legislators in this island we have a duty to give leadership.

Mr. Skelly: Information on Liam Skelly  Zoom on Liam Skelly  Where is the Deputy's Leader?

Mr. N. Treacy: Information on Noel Treacy  Zoom on Noel Treacy  My Leader has been [1396] representing this country in an attempt to alleviate the problems created by the failure of the Taoiseach, the Minister for Agriculture and the Government.

An Leas-Cheann Comhairle: Information on John J. Ryan  Zoom on John J. Ryan  If Deputy Skelly does not cease to interrupt, he will have to leave the House.

Mr. N. Treacy: Information on Noel Treacy  Zoom on Noel Treacy  They have failed to represent the country in a positive and vigorous manner within the European Community since they came into office in November, 1982. My Leader has been out of the country working for the people, but is now back in the country and will be here this afternoon.

Mr. Skelly: Information on Liam Skelly  Zoom on Liam Skelly  He said that his view is not relevant.

Mr. N. Treacy: Information on Noel Treacy  Zoom on Noel Treacy  His view is relevant and the Irish people have the utmost trust in that man. He will be returned as the next Leader of this House and the country in the not too distant future.

Mr. Skelly: Information on Liam Skelly  Zoom on Liam Skelly  Let the Deputy not be too sure.

Mr. N. Treacy: Information on Noel Treacy  Zoom on Noel Treacy  I am quite certain. The Government have tried to make political capital out of this situation, which is very sad. Our party's position has been quite clear. We have not opposed the holding of the referendum. We have allowed the Government to proceed unimpeded. The tragedy is that the Government have no faith in the wisdom and no confidence in the ability of the people to make up their own minds. Within the two main parties of the Coalition is an orchestrated, organised political campaign, through this House, through their spokespersons and their organisations, to try to condition the people into supporting this amendment. They should allow the people to make up their own minds in a balanced, rational way.

Money has been expended in vast amounts by the Fine Gael Party on documents, papers and literature throughout the country to condition the people.

[1397]Mr. Taylor: Information on Mervyn Taylor  Zoom on Mervyn Taylor  The Labour Party would do likewise if they had the money.

Mr. N. Treacy: Information on Noel Treacy  Zoom on Noel Treacy  When we were in Government — and Deputy Taylor may check the record in this respect — any time we put constitutional amendments before the people we did not use money or propaganda to condition them. We put it through this House and left it up to the people to make up their own minds. We are now as a responsible political party, and as the biggest political party in this House, asking the people again to make up their own minds in a balanced and mature way. I am very disappointed that the Government have tried to politicise this issue in this House and particularly outside this House. It is a very sad situation.

Mr. Skelly: Information on Liam Skelly  Zoom on Liam Skelly  Deputy Woods did not politicise it at all.

Mr. N. Treacy: Information on Noel Treacy  Zoom on Noel Treacy  Deputy Woods gave a very balanced, rational and mature contribution on the legal implications of this situation. He is to be commended as one of the outstanding spokesmen in this House.

Mr. Skelly: Information on Liam Skelly  Zoom on Liam Skelly  Is the Deputy going to campaign for him?

Mr. N. Treacy: Information on Noel Treacy  Zoom on Noel Treacy  Article 40 of the Constitution guarantees that all of the citizens as human persons shall be held equal before the law. I want to ask this House and, through this House, the people if in this enactment we now propose we can guarantee that all of the people of this island will be treated as equal before the law. Where two partners get married, have a family, have property, but where the marital relationship breaks down, and one of those partners forms another alliance and has children with a second partner, can we guarantee the same equal treatment for the children of the first marriage or the first partnership?

Nothing has impressed me in any of the contributions made by the Government [1398] speakers or any of the documents which have been submitted by the various Government agencies that we can guarantee that equality, protection and treatment for the children of the first marriage. I know at first hand of a situation in my own constituency where a marriage has broken down. There were three children of that marriage and the father inherited his father's property. There was a second alliance and other children. The property had to be sold. We now find a situation where the mother in the first marriage and her three children are in an impoverished situation and dependent on the State. They have no protection whatever. They got no money out of the sale of that property once the legal situation was disposed of. All of the money coming out of that property was spent on the families during the court case which went on for about two years, mostly on the payment to the legal people involved.

That is the exact situation which is going to happen in the vast majority of cases unless the partners in marriage and unless the people involved in marital breakdown find themselves in a very wealthy position where people can pay vast amounts of money to get themselves out of the marital problems in which they find themselves through the courts, which this amendment would allow if it were passed by the people. I cannot see how people in marital difficulties can afford to go through this rigorous, costly and complicated legal procedure. What I would like to see is legislation whereby family courts would be made available to reconcile the situation, where there would be professional legal and social workers available within each health board area to ensure that the people in this situation have professional advice available to them, so that some reconciliation could be brought about and where there would be measures within social welfare which would protect people in this sad situation.

I am not just talking about the mother in the home: the State also gives special consideration and protection to the [1399] woman in the home. In Article 41.2.1º the State recognises that by her life within the home the woman gives to the State a support without which the common good cannot be achieved. This is an outstanding acknowledgment of the contribution of the woman in the home and the responsibility that she carries.

Mrs. Barnes: Information on Monica Barnes  Zoom on Monica Barnes  Mere words.

Mr. N. Treacy: Information on Noel Treacy  Zoom on Noel Treacy  She has often been and in many cases is the victim of marital breakdown. She finds herself in a very serious, sad situation. We are not, by creating an opportunity to disintegrate marriage in a situation like this as proposed in the constitutional amendment, creating the environment or the solution to solving the problems so that the woman in the home and her children will have a satisfactory conclusion to their difficulties. I believe that what should be done is that family courts should be there, proper legislation should be enacted and an ongoing guaranteed financial support should be made available to people in this sad situation.

Part two of this proposal refers to where a marriage has failed: how are we to define a marriage which has failed? Who is to define that failure has continued for a period or periods amounting to at least five years? That is very vague. Once the legal people can prove conclusively that a marriage has failed, the Judiciary will have no option but to grant a dissolution of marriage. If a person is an airline pilot, seaman or even a politician and they are away for periods or vice versa and if the mother in the home enjoys a similar position eventually this can lead to difficulties within the marital situation. Are we to find ourselves in a situation that because they were away on their profesional duties this is going to give legal strength to helping to bring about a situation where a marriage will be dissolved? We have rushed the situation too quickly and have not taken a mature, balanced and rational approach to it. We have not waited to come up with the statistics which would give a clear indication [1400] of the exact extent of this problem. The Government are acting very irresponsibly at this time.

It is a dying political kick from the Taoiseach to foist this on the people at this time without giving them the opportunity and the statistics to know exactly what is the extent of the problem. It is very unfair to us as Members of this House to find ourselves in that serious situation also. The constitutional position of the woman and the family are guaranteed. We are now going to change the Constitution and destabilise the basic fabric of society and the family situation. That is a very irresponsible thing to do.

What we should be looking at at this time is the exact extent of the problem and how we can create the environment in which the problem can be solved. Above all, we should be looking at the whole background of the situation and the development of family life to see that the environment, particularly the educational environment, within which they find themselves and come through can be improved to make sure that they will be mature and go into a family situation in a very positive way with the full knowledge of the exact extent of their responsibilities and the difficulties that they could encounter. Particularly at second level, the educational system must be updated to include a proper preparation for the responsibilities of marriage of our young.

This is where we should have moved, and that is the type of legislation we should be introducing. That is where the input of our resources, efforts and finance should be directed at this time. When we know the exact extent of the problem, then, if necessary, we could consider a constitutional amendment. It is far too hasty and irresponsible at this time. We definitely could have brought in the family courts now. Legislation could have been enacted to try to alleviate the difficulties which have been created.

What will the social consequences be in a situation where people can remarry and there are two families? There will be sadness and difficulties created for the people in the first marriage and there will [1401] be extra responsibility for the people in the second marriage. This is all being cast aside by the State and has been ignored for far too long. The constitutional and legal effects and, above all, the effects on property distribution will destabilise the basic fabric of the family, remove its protection, and have horrendous social, financial and legal implications for the future of this State. I believe what we now propose will have a major effect and will place major responsibilities on the State and on future Governments. The Government have rushed this measure far too quickly and have not given the Irish people a proper and detailed analysis of the extent of the problem. I have the utmost confidence that the Irish people will make a reasonable, balanced and mature decision on this matter. I am confident that they will ensure that the family structure which has served this country so well for so long in a humane and distinctive manner will be preserved for future generations.

Mrs. Barnes: Information on Monica Barnes  Zoom on Monica Barnes  Deputy Treacy ended on words which I would like to take up. He spoke about the unique, longstanding unit of marriage enshrined in the Constitution. During the hours I spent here listenting to debates on marriage breakdown, and particularly this one, I have heard from the other side of the House the Constitution, and particularly Article 41, recited as if it were some kind of mantra with perhaps an hypnotic and an anaesthetic effect — if it is said often enough, not alone might it be believed, but it might have some truth. I waited hours in this Chamber to speak about the protection which women have had since 1937 under Article 41 of the Constitution.

Deputy Flynn said yesterday that one should not speak without giving statistics, that one should give facts. I now wish to place before this House some facts. Article 41.1.2º states:

The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensible to the welfare of the Nation and the State.

[1402] Article 41.2.1º states:

In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

Deputy Treacy quoted from the Constitution that all the people will be treated as equal before the law on this island. I drew attention to the fact before, and I shall do so again, that in 1937 we saw the only place for woman, be she single, married or deserted, as being in the home. She had no role, no power, and no financial independence outside the home.

Mr. N. Treacy: Information on Noel Treacy  Zoom on Noel Treacy  That is not true.

An Ceann Comhairle: Information on Thomas J. Fitzpatrick  Zoom on Thomas J. Fitzpatrick  We will not have interruptions.

Mrs. Barnes: Information on Monica Barnes  Zoom on Monica Barnes  Until the Succession Act woman who, until 1973 was not allowed to work outside the home because the marriage bar, worked ——

Mr. N. Treacy: Information on Noel Treacy  Zoom on Noel Treacy  That was for a different reason.

An Ceann Comhairle: Information on Thomas J. Fitzpatrick  Zoom on Thomas J. Fitzpatrick  Everybody will get an opportunity to contribute without interruption.

Mrs. Barnes: Information on Monica Barnes  Zoom on Monica Barnes  At the end of her life she could find herself cut off without a shilling. It was considered very risky and insecure to leave property to the wife without ensuring that it was in some way legally tied up, that it would have to be passed on to the male inheritors. In 1973, 36 years after the 1937 Constitution, the State did not dismiss women on marriage. They lifted a legal State embargo that did not give them the choice to work unless they remained single. It was accepted socially that a women should be married and therefore she did not get much promotion or career opportunity if she remained in the workforce. We have the statistics to prove that right up to 1976.

Up to 1976 what was the position of a woman and her children in the home, the unit which is the cornerstone of our society? Woman did not have the economic independence to engage in financial negotiations with regard to the purchase of the family home. Therefore all legal entitlement and ownership of the [1403] home belonged automatically, naturally and almost constitutionally to the husband, the breadwinner, the householder, the man of property. What happened when the said spouse decided that he would like to dispose of the family home, the cornerstone without which the common good cannot be achieved? Until 1976 he could sell it without even the courtesy of telling his wife.

Deputy Treacy accuses me of coming into this House and destabilising marriage. I want to tell Deputy Treacy that the only reason I was elected to this House, with all its frustrations and compromises, was my commitment to the position of women within the home and outside the home. It is my commitment. The fact that down the years we paid lip service to constitutional enshrinements and paid no heed either inside or outside this House to the protection of value of women's work in the home led to a male Chamber being able to enjoy the fantasy that in some way women and their families were protected. I sat in this Chamber hour after hour listening to the very people who opposed every single legislative amendment and reform that we attempted to bring in, particularly over the past 13 years, in order to provide some kind of protection for women and children. I found it not alone incredible but quite sickening to find that the people who are opposing this referendum and the legalising of divorce legislation——

Mr. Wilson: Information on John P. Wilson  Zoom on John P. Wilson  What about the Succession Act?

Mrs. Barnes: Information on Monica Barnes  Zoom on Monica Barnes  I dealt with that. I said it took 30 years.

Mr. Wilson: Information on John P. Wilson  Zoom on John P. Wilson  I am talking about 1964.

Mrs. Barnes: Information on Monica Barnes  Zoom on Monica Barnes  In 1977 we promised protection for women. Deputy Wilson has reminded me that Deputy Treacy talked consistently about the unbridled haste with which we are rushing into this. He is right when you think that it took from 1937 to 1964 to get the Succession Act and from 1937 to 1976 to get legal protection for a women so that her family home [1404] could not be sold without her knowledge. At this rate we could be optimistic about the year 2050. People come in here and not alone do they not apologise or feel embarrassed about that, but actually suggest that we are moving with haste.

Women outside the House consider that the Family Home Protection Act is one of the most important protections they have been given. People have bleated here about the family home and the threat to the family home of the first wife of a marriage and her children. They probably do not even realise that that Act protects a woman only to the extent that without written consent by her the home cannot be sold. If a woman has to sign a form of consent to sell a home and if she is not in joint ownership of the home, no matter how many years she has given to the home and the family, legally she is not entitled to a penny from the price of that house. Neither, legally is she entitled to any part of the contents of the family home unless she can prove that financially and independently she paid for such property.

What are we saying to the women of Ireland who up to 1973 were forced to give up their work and to work only within the home? Up to 1976, backed by the 1937 Constitution, we were saying that legally the value of the work done by women in the home did not entitle them to any part of the value of any property contained in the family home. But I and other women had to listen to a chorus of men in this House talking about how we would victimise women through this legislation. I thought I was living in some other planet.

My God, when I think of the women deserted bringing up their children or single mothers bringing up their children and realise the lack of protection they got from the State, I wonder what such women think about this House, what perception they must have of the kind of speeches that have been spewed out in this House in the past three days. No wonder we would be considered irrelevant, no wonder women do not consider themselves part of the planet we inhabit. They think of the daily grind of their [1405] poverty, the lack of acknowledgment of their value in the home, the total lack of protection and of social respect when they are deserted or are single parents with children to raise. This should lead us here to think positively and constructively of what we are attempting to do in this Bill and the legislation that will follow as a result.

If nothing more, I hope that this debate will bring about awareness of the reality of people's lives and broken marriages throughout the country. If we attain that awareness we might be able to face reality and do something about the position.

Between 1973 and 1977 we brought in legislation to enable women to begin to realise that not alone are they citizens but equal within the State. We introduced the concept of equal pay. Women were considered so unequal until then, second class, that even when they did exactly the same work as men, by their gender they were paid less. Then we discovered that legislation on equal pay merely highlighted the fact that most women were not given opportunities to be in a position in which they could actually be eligible for equal pay beside their male working colleagues. So in 1977 we had to bring in an equal opportunity Bill. Those foundation stones enabled women to begin to work towards being accepted and seen as equal citizens with equal rights. That came as a direct result of our membership of the EC.

When I hear people here alleging that the systems and the working orders and social orders and justice systems in European countries are somehow less moral, with less integrity then here, I realise the kind of fantasy shared by Deputies here. It probably goes back to what Deputy Kelly referred to this morning: a type of isolation we attempt to give to ourselves, an immunity, by building barriers around ourselves. Liberalism here is still considered to be a dirty word. If we brought about real equal rights, real Republican ideals, we would be stabilising our society. We have an incredible amount of ignorance — I do not say that in a deprecative way but because of our lack of knowing ourselves better — and [1406] despite the glorious words of our Constitution we have succeeded in building ourselves one of the most unequal and unjust societies in a nation built on the most wonderful ideals. It is only now that we are beginning to talk openly and honestly about how we have failed.

The proposal we are putting to the country is part of an attempt to be honest, to come to terms with some kind of justice, to consider all the human frailties in emotional relationships and the legal entanglements that other countries took on. Of course those countries made mistakes: they are still learning that some of the models they set up were not right. But they initiated the process of bringing about better societies. Nobody on this side is suggesting that divorce is a solution to all problems, that it is an easy way of sorting out marital differences, that the social implications are not great. I, for one, am particularly concerned that the kind of legislation the referendum will bring about, that the kind of structures we will set up will be based on foundations with which we have not been successful heretofore. One of my concerns is that this will be applied equally to the poor and the rich. I do not want to see a form of divorce legislation under which the well-off and the affluent, the propertied people, can have a court to which they will have access.

Mr. Wilson: Information on John P. Wilson  Zoom on John P. Wilson  That is the danger. That is what will happen.

Mrs. Barnes: Information on Monica Barnes  Zoom on Monica Barnes  Despite the Frankensteins stalking the land we will get legislation that will help to solve our social problems. We have failed totally until now in our courts system. We inherited it, it was imposed upon us, and only men were given the training to operate within these courts. From a woman's point of view there is a lack of insight, experience and justice in the courts system. A woman can be put at a disadvantage psychologically if she thinks there is a patriarchal authority, with men making decisions that affect her life and the lives of her children. There must be equal participation [1407] and representation of women in the courts system. I welcome the setting up of the family court. I see it as a new model, leaving aside the trammels and rigidities of the law that insisted on people being humiliated and confronted. When the referendum is passed we will deal with that matter. I say to everyone in this House that I am not going to the country campaigning with regard to the referendum unless I believe we mean what we say when we talk about the kind of legislation and the support system we will provide after the referendum.

I must admit in fairness that I am sure some of the Members who contributed to the debate in the past few days did not do so out of a sense of ill will but were simply not in touch with the reality of family breakdown. As I have already stated, I resent very much that the only time we raise issues relating to women and children is when we are opposing something that women outside the House want. Many women have done outstanding work in voluntary groups and in agencies such as AIM and Family Aid. We should check with those people and with women who have been deserted, who have been battered and brutalised, and find out how they feel about the introduction of divorce legislation.

Up to now women and children have been grouped together, the connotation being that women have only the same amount of control and power as have children, that they are vulnerable and with no power to make decisions. The attitude has been that women and children are a group who have to be protected. The level of insult offered to women shows clearly our perception of them. Yet, when we look at the reality, when these people have to cope with marriage breakdown we find they are the survivors. We realise they are the ones who cope, the ones who must pick themselves up from the ground, dust themselves off and keep their children together. While we demand that kind of survival from them we still allege that they are powerless and vulnerable creatures.

What do we say about the men who [1408] are married to them? It has been said time and again that men are tied into marriage and into commitment to their wives and children only because we do not allow divorce. It has been said that men will rush off and get divorces, that they will leave their wives and children and enter into second relationships. The level of insult we offer to men and women and to their integrity and commitment to marriage is significant because the extension of that argument is that essentially there is no real emotional commitment or relationship holding them together, that they have no sense of responsibility towards one another.

What are we really saying about marriage, about the relationship between women and men and their inter-dependence on one another? I should like some of the men who have spoken here in the past few days to look at the words they have used. They have shown they have no faith in women, in their independence or survival. They have alleged that droves of men will rush off and leave their wives. The very base of our society is seen to be nothing but a locked-in, involuntary legal arrangement out of which people would break if only they had the chance. There is a sense of schizophrenia in those arguments and it is something that we shall have to look at if we are serious about marriage and the relationship between men and women. I should like to see that consideration being part of this debate.

We have been told again and again that we should not use hard cases to make our point. The attitude is that if we keep talking about figures and if we wait until the percentages are right we can ignore the misery and injustice meted out to people because we have not introduced a divorce jurisdiction. We have talked in this debate only of the breakdown of the first relationship. References have been made to the poor wife who is thrown to one side or, in the words of one speaker, “cast to one side”. We always seem to speak of women as being the people who are cast aside and never the men. The attitude has been that if we talk about statistics and about the percentage of [1409] marriage breakdown that will put off the evil day of having to make any decisions.

I have found the atmosphere in this House rather claustrophobic in the past few days. It has been inferred that apart from a few disputed figures the scale of marriage breakdown is not high and will not be high unless and until we bring in divorce legislation. Will the floodgates then be opened, or will monsters awake and stalk the land? What we must recognise is that we have all the negative and worrying aspects of divorce already and none of the positive, supportive legal aspects. We have marriage breakdown. We have people who are afraid to become involved in another relationship because it will not be acknowledged and others who have entered into a second relationship who are experiencing the trauma and unhappiness that lack of acknowledgment of that relationship brings about. Until one comes across that trauma one can treat those involved as statistics.

There are many who believe it to be their civil right that the irretrievable breakdown of a marriage should be legally acknowledged. I know a woman who was deserted by her husband 20 years ago. In all that time she never heard from him. At that time there was no structure she could use to get maintenance as it was not until 1976 that maintenance was introduced. She struggled to survive and brought up four children. In the eyes of the State and in society she is known as the wife of that man who deserted her 20 years ago. She is legally tied to that marriage. I have shared the same platform as those who say people should work at reconciliation. Deputy Treacy advocated some kind of structure for reconciliation so that couples could be brought together again — if only couples worked at it they could be reconciled and we would not need divorce. How can one say that to a woman who has not seen or heard from her husband in 20 years? She believes she has a civil right to have the end of her marriage legally acknowledged and to establish herself as a person in her own right and not the appendage of a [1410] husband who left her.

It is not a question of everyone rushing out and marrying again. It is a legal acknowledgment of the end of a marriage which allows people to regain their status and gives them legal protection. It would ensure that the spouses and children of the first relationship and of the second relationship, if that arose, would have a legal protection which would ensure that all parties would get what is just and fair. We do not have that now.

The opposing argument has only considered the spouses and children of the first relationship. It will have a legal protection which it does not have at present. What about those involved in a second relationship? Take the case of a deserted wife who forms a new liaison and has a second family. As it stands at present she has no right to support from her new partner. She cannot claim maintenance nor succeed to his estate when he dies. The Succession Acts do not enter into it. She has no rights under the Family Home Protection Act. She cannot obtain a barring order in the event of violence to her or her children. If deserted she is not entitled to deserted wife's benefit or allowance. If he dies she is not entitled to a widow's pension. Her children are not acknowledged but are discriminated against. Hopefully, by a family unit we mean loving people living together and bringing up children in that atmosphere. Family units such as the one I describe are discriminated against. They are not acknowledged and they are unprotected. Women are at risk and they have no rights, status or dignity for themselves or their children.

We must realise that this is not a mad rush to destabilise marriage. Deputy Glenn referred to me during the course of her speech and said that I said that because the rest of Europe had divorce we should have it as well. I would like to think the debate would not be carried on at that level. There are many people who have found out the painful way that we cannot legally acknowledge second relationships and the children of bigamous marriages. There are many couples who do not bother to marry in church or in a [1411] registry office because they realise the legal difficulties will not allow them to be acknowledged anyway.

We have a steadily increasing number of young people, but against all the trends we have a decreasing rate of marriage. It is not that men and women are not involved in relationships with each other, but it is an acceptance by them that it is wiser not to become involved in marriage. I am sure I will be told I am advocating permissiveness and promiscuity because of that. If we really mean what we say when we speak about the stabilising influence of marriage we must do something.

I am aware that there are a number of people who wish to contribute so I will not take up the time of the House. It has been said again and again that children will be damaged only if divorce is introduced. But it is the breakdown of relationships, the lack of protection and security that cause the damage and the scarring and the trauma now. I welcome the setting up of the structures we intend setting up after this referendum because I believe children probably would not have been as scarred and damaged if we had those agencies already. Let us hope we will have them. In the meantime, we have certain other areas to look at.

It has been said, quite succinctly, that divorce will give children rights they have not got now. That is legally true. Attention has also been drawn to the fact that nullity removes those protections. What is the situation of those children when nullity declares that the marriage never was? I wish we had the same concern for children which I have heard expressed here during the past three days. We have children in poverty, children at risk from sexual abuse which is a problem we are only reluctantly beginning to face up to. We have children deemed illegitimate which makes a laugh of the constitutional concept of everybody being equal under the law. We have the children of travellers and we have marginalised children.

Yet, listening to some of the speakers in the past three days, it would seem that we did not go to bed easily at night [1412] without assuring ourselves that the rights of children were totally and completely protected. We have just been paying lip service. We have codded ourselves that in some way we have created a society based on a Constitution enshrining those rights and protections and that in doing that we have achieved what we wanted. I am not detracting from the ideals of the Constitution. But I am accusing legislators of using those words that are in the Constitution and pretending there is a reality behind them.

There is in the Constitution at the moment an article that is not a protection or a support to marriage but an obstacle to second relationships and first relationships being looked after properly, and to men and women being able to commit themselves in a second relationship that is legally acknowledged. If this is defeated, if we are prevented for many more years from bringing in this divorce legislation, we are condemning young men and women with a bad relationship that has irretrievably broken down to a life without the right to a full, loving, caring relationship with somebody else.

We are saying to them that the only experience we are allowing them of marriage is a bad one that has failed, and the only perception of women as wives and men as husbands is that they will be allowed the one they have just failed at. We are saying to children who may even have been the victims of abuse and violence from their parents that it is hard luck on them that they do not happen to be in the group who managed to stay together and that therefore they will never know a caring father figure who will be able to be legally acknowledged and we will not even allow a father under the present law to acknowledge his son or daughter by allowing his name to go on the birth certificate because the first husband supersedes him. It is easy enough to deal with the hypocrisy, but it is what is underlying it that is of concern, that is, the human tragedy, misery and, above all, the undermining of the law of the State because people find themselves in all kinds of informal situations, all kinds of nod and wink situations, all kinds [1413] of terribly unprotected situations until the time of death or the time of checking what their real securities are.

The people of Ireland, in 1986, deserve to have the positive aspects of the Constitution implemented. There are parts of the Constitution which deify private property to the extent that tenants have no rights, that farmers can rush off when threatened with rates and have the Supreme Court on their side, that houses cannot be built cheaply because private property owners can demand that rezoning will increase the price of land by 100 per cent. Why are we not concentrating on those areas of the Constitution? Why are we concentrating on those areas of the Constitution that prevent a child from being adopted because he or she is the child of legally married parents? Let us stop being selective. We are selective with regard to the Constitution and we are selective with regard to our marriage ceremony.

I will end on this note and leave everybody to ponder on it. Why is there such emphasis on the fact that marriage solemnised can never break down? The harsh, grim reality of the phrase “until death do us part” in the marriage ceremony is that we have locked people — and several recent horrendous cases have told us this — into a situation where the only way out of a marriage situation is murder or suicide. If those are the lengths we have to go to to make people realise that this is the only way out, God help us.

I should like to remind the House and the Church outside it that there is another very basic promise which does not seem to be enforced in the same way made by the man to the woman, because of all the historical reasons I have given, and that is the promise he makes when he says, “and with all my worldly goods I thee endow”. I will not take up the time of the House by reciting again the long, painful efforts of women to get the minimum of protection. Even now we have not got legislation that guarantees the woman in a partnership of marriage a legal entitlement to the property of her husband. I rest my case. Once the women of this country realise the unprotected [1414] situation they are in, they will be queuing up to vote.

Mr. Kirk: Information on Seamus Kirk  Zoom on Seamus Kirk  I am glad of the opportunity to speak on this Bill. Without a doubt the proposals contained in the Bill are some of the most important and far-reaching yet debated in this House. The family unit based on marriage has been the cornerstone of our society as we have known if for centuries. The family unit has been and is a natural and fundamental group with a powerful influence in our society. Marriage is a legal, moral and religious arrangement which changes the status of both parties to the agreement. For the majority of people, it is the most serious and important decision they will make in their lifetime.

When the 1937 Constitution was being formulated the well-being of the family unit was of paramount importance. The stabilising influence it exercised on society at that time was, and still is, recognised in that same Constitution. If we turn back the pages of history to tribal times, the law makers and the elders saw the family unit as basic and fundamental. Their laws and sanctions were manifestly designed to safeguard the family unit. Marriage brought duties and obligations then, and it is no different today. Marriage was, and is, a lifelong commitment. The duties, obligations and rights of everybody involved in the family unit demand this lifelong commitment.

The debate on this Bill to date has been orderly and positive. The diversity of views expressed clearly shows the depth of understanding of the subject's importance for the future of this country and of our people. There is no doubt that the changes in social attitudes in recent years have put previously unknown pressure on marriage and on family life. We have had a steady increase in the number of illegitimate children born — or should I say more correctly the number of children born to illegitimate parents. People have greater mobility nowadays, with increasing emphasis on personal freedoms. I believe the interaction of that mobility plus many other factors are causing [1415] pressure and stress on many marital unions at present. In other jurisdictions divorce has been introduced to cope with this type of pressure and stress. I believe — and I am not alone in this belief — that the effect of the introduction of divorce in those countries has been devastating. There has been an alarming increase in the number of marital breakdowns and all the trends point towards a continuing and ongoing increase in that number.

Before the people vote in the referendum they will have to ponder long and hard the implications of the introduction of divorce into our jurisdiction. Experience in other countries clearly shows that the stability of those societies has been severely affected. I believe the roots of Irish society will be severed by the introduction of divorce. Traditional attitudes which stood us in good stead will disappear. New attitudes will dictate a new order which, I am afraid, has plainly failed in other countries.

Marriage breakdown is a painful human tragedy. Those who have contributed to this debate so far have shown compassion and understanding to all those involved in marriage breakdown. If we examine the underlying problems with marital difficulties, we find they are caused by a diversity of elements—basic incompatibility of the partners involved, different degrees of maturity among the marriage partners and the economic and social pressures.

Nowadays people marry younger. While it is fair to say that people getting married have acquired varying degrees of maturity, unfortunately in too many instances there is basic immaturity and an inability to cope with the economic pressures and responsibility that marriage inevitably brings. The sort of advice, counselling and moral support needed in these cases is sadly missing in our society. Research in other countries has clearly shown that the age of the partners in marriage is a very important consideration for the success, stability and continuity of the marriage.

The Oireachtas Joint Committee on Marriage Breakdown in their recent [1416] report clearly saw a need for a proper cohesive and comprehensive educational programme specifically designed to prepare people for marriage. The report went on to say that this programme should operate through our entire educational system. It would be very difficult to disagree with that comment. I also believe that personal development, the art of communication, the cultivation of a better understanding of human frailties to which we are all subject would seem to be an essential part of any educational process. To augment the educational efforts in this regard, couples planning to marry must surely derive considerable and lasting benefit from an expanded pre-marriage guidance service. The availability of a proper, comprehensive counselling service when the first signs of marital stress or difficulties appear would help to stabilise many of the family units involved.

We are living in an age when economic pressures on everybody are immense. Nearly a quarter of a million people are unemployed. Local authorities and other lending institutions providing finance for house building and house purchase are running into difficulties with people who are unable to meet their considerable repayments. Jobs that seemed so secure a mere few years ago are gone today. Many of these circumstances contribute significantly to marital difficulties and stress. If the volume of domestic finance needed to meet mortgage repayments, to clothe and feed the family and to meet their educational costs is not readily available in a weekly pay package or salary, then inevitably conflict and differences of opinion will ensue between the partners in the marriage. While not strictly relevant to the debate today, it might be opportune to suggest that the Government consider a more flexible housing loan scheme than we have at present so that people who find themselves out of a job and unable to meet the weekly demands——

An Leas-Cheann Comhairle: Information on John J. Ryan  Zoom on John J. Ryan  This must be just a passing reference.

[1417]Mr. Kirk: Information on Seamus Kirk  Zoom on Seamus Kirk  ——could have their mortgage repayments at a rate less than it would be under the normal arrangements with the local authorities, SDA and Housing Finance Agency loan schemes. That could contribute to the well-being of many marital partnerships who find themselves in difficult financial straits because of unemployment and inadequate income.

The people will have to ask themselves before they vote in the proposed referendum what the implications of the availability of divorce in this jurisdiction will be. If divorce is introduced will couples entering marriage know that it is not for life? Will the sort of commitment needed to make the marriage work and for a lifelong union be there? Will the planning, preparation and realisation of the duties, the obligations and the responsibility involved be as thorough as they should be? Will the knowledge that if things do not work out there will be a fall back option, mean that the necessary seriousness of intent to ensure that the marriage succeeds will not be there?

In the debate in this House so far every side has agreed that the sort of emotional trauma that divorce brings for the children of the divorced couple is quite enormous. Marital conflict must leave an impact on the children in a family, yet studies in recent years point to even greater damage being done in the case of divorce when the father and mother part forever. The sort of moral support, the sense of belonging, the parental guidance that are so essential are not available to the children when the parents divorce. Those children are left with a feeling of being disowned, discarded. They are exposed to all the social evils of their environment without parental support and protection. It is very easy for children in that position to become enmeshed in an attitude of mind that leads to instability and alienation from society which, in turn, can lead to crime and juvenile delinquency. If divorce is introduced in this country and if the income of estranged spouses when a second partnership has been formed cannot support the dependants of their broken marriage and [1418] of the new union, on whom will the responsibility to provide financial support rest? If the parties of the broken marriage and the party involved in the new union are unable to provide that financial support, it is inevitable that the responsibility will fall back on the Exchequer and our economy. I do not want to dwell on the financial difficulties which we are experiencing at present but we must ask ourselves if the financial provision for the Department of Social Welfare would be able to provide the necessary wherewithal for people in that position.

Evidence in other countries proves that women and children suffer very severe financial hardship as a result of divorce. It would be unrealistic to think that the average spouse, given the per capita income here, would be in a position to support two households. I am convinced there would be a steep drop in living standards in the vast majority of these cases. If the wife finds herself with a young family who need her at home to ensure that they are properly looked after, go out to school and so on, she is not in a position to take up a job to make up the shortfall which will occur. It is obvious that the family financial circumstances will be very bad and, taken in conjunction with the emotional and social vulnerability of divorced women, it is very easy to appreciate the feeling of isolation of women in these circumstances.

Women and children will be impoverished and in many cases solely dependent on the State for financial support. If the changes envisaged in this Bill bring the sort of marital morass which has afflicted other countries, particularly the USA and Britain, it is not old fashioned to say they will not do anything for our wellbeing. Somebody told me today that he watched a programme on television last night dealing with future trends in the USA which suggested that most Americans could, by the year 2000, marry at least three times in their lifetime and tens of thousands more would pass the magical age of 100. It is quite understandable, given the vast research in the field of medicine, that the age to which [1419] people live will inevitably be extended. If people in this country were to marry two or three times in their lifetime, it is not hard to get a clear picture of the implications involved. The fabric which has stood our society in good stead would not be as we have known it for centuries.

The social, economic and emotional implications involved in those circumstances are too serious to think about. However, we must think about them because of their effect on social and economic developments. It would be very undesirable to have people getting married two or three times in their lifetime. In America over the past five years there has been a steady — in some cases a dramatic — rise in the percentage of marital breakdown. Surely it is not beyond our capacity to learn lessons from the experience of other jurisdictions? If those experiences are not for the common good we should reject them and adopt proposals which would contribute to stability and continuity of society as we know it.

As I said earlier, in the past six or seven years, marital stress and difficulties have increased dramatically. I outlined why I thought those difficulties existed. I have the utmost confidence in the intelligence and judgment of the Irish people in regard to these matters. Decisions taken by them in previous referenda have, by and large, been for the good of the country. The intelligence, understanding and appreciation of the Irish electorate of what is best for the people and their future will be reflected in the result of the referendum when it is held at the end of June.

Mr. Taylor: Information on Mervyn Taylor  Zoom on Mervyn Taylor  The implications of the comments and approaches to this problem by the last speaker and others who have contributed to the debate over the last decade or so suggest that all is well in the field of marital development and of marital law here. The implication is that all is well and that we should protect something that has worked well and gone right. One Deputy referred to a marital morass in other countries, [1420] thereby indicating that all is well here, that the prohibition on divorce we have had for years has solved our problem. That Deputy seemed to indicate that we do not have any problem, that everything in the garden is fine and that we must protect the status quo. However, the fact of the matter is, as must be well known to such speakers, that we have a marital morass here, that we have marital breakdown on a large scale and tremendous hardship, unhappiness and brutality suffered by men, women and their children. Are we to go on with that, or are we to try to alleviate it? That is the nub of the problem we face.

It avails us nothing that Deputy Kirk analysed with great skill what may be the contributory reasons in a modern context for the appalling escalation in the levels of marital breakdown that we have. That is helpful only up to a point. We have to decide how we deal with this problem. On the last occasion I addressed the House on the subject of marital breakdown, I was looking for support for a different Bill even though it was one which would have achieved essentially the same purpose. I am happy, therefore, to have the opportunity to welcome this Bill because I believe it will achieve an improvement in the position. I should like to assure the House of my full support for the amendment and the legislation which, it is envisaged, will follow the acceptance of the amendment by the people of Ireland.

The Bill I moved in the House, and which did not secure as much support, unfortunately, as I hope this one will, set out to establish a number of parameters within which divorce would be permitted. We proposed that divorce could only be granted by the courts, could only be granted in the case of marriages that were irretrievably ended and where adequate provision had been made for dependants. The Bill before us relies on these parameters to a significant extent and is, therefore, all the more welcome because of its similarity to the Labour Party Bill.

The Bill contains an additional safeguard, through which the test of the failure [1421] of a marriage is prescribed as being a period or periods of separation amounting to five years. That additional safeguard is also welcome. Many of us would regard the period of five years as very restrictive but would be concerned also lest this Bill which is both practical and progressive is defeated because of the argument that it opens the floodgates to easy divorce. The inclusion of the five-year clause in such a way that only the people can reduce it through another referendum eliminates that argument. It is clear that the construction proposed will not open any floodgates and that it will instead help to present the whole question of divorce as a last resort. That is as it should be.

It is appropriate that one who has frequently been a critic of Government policy, as I have, should use this occasion to give credit where it is due. I should like, therefore, to congratulate the members of the Government on the courageous decision to proceed with this legislation. I believe the quality of the wording, which is both practical and compassionate, owes a great deal to the work of the Attorney General, John Rogers, and I should like to pay a special tribute to him.

For two years now we in the Labour Party have been saying this debate is essentially a debate about whether or not we should extend the right to remarry to people whose existing marriages have broken down beyond hope of saving them. There is already available to such people a range of machinery, both formal and informal, for declaring their marriages over, but there is no mechanism under which people can begin again, and the consequences of this anomaly is becoming more visible by the day. The consequence of the absence of divorce is human suffering and hardship, on a scale that is steadily getting bigger, until it long ago reached a point where it could not be ignored.

This is a reality. It is a reality which we can deal with. There is now a remedy available. If we approach the problem wisely we can solve it without running the risk of making the situation worse [1422] than it is already. Our position as a party is a very simple one. We believe that divorce should be available, through the courts, for people whose marriages are dead.

I should like to refer to the implications of the description of the permanency of marriage. We hear comments that marriage is permanent and indissoluble. In the course of his speech yesterday Deputy McCarthy said that marriage was indissoluble and permanent. What kind of nonsense is that type of statement? We know there are approximately 70,000 examples of cases where marriage has been dissovled and is not permanent. Why do we keep on with this talk that marriage is permanent, that marriage is for life, as Deputy Noel Treacy said? It is not for life and 70,000 witnesses could be called to give evidence to that fact. Why do we have this constant repetition, this constant harping on this point which is so patently not correct and not true? Some people believe that, if they say it often or loud enough, that will make it true.

A middle aged couple with two children, one aged approximately four years and the other approximatley six years, called to my clinic recently and the story that unfolded was very typical. The man had been married and his wife had left him some nine or ten years previously. That woman was living with another man and had established a relationship there. The man had been living for the last eight years with a woman who accompanied him on his visit to my clinic and they had two very attractive and fine children. We discussed their position.

What would Deputy Kirk say to those people? What would Deputy Cooney say to that couple who represent what is by an commonsense description a family unit? Do we say to them that everything is all right, that they should carry on in this criminalised situation where the children cannot have a proper birth certificate or regularise the position that has been established over all these years? Do we tell those people to carry on, or do we say that we have to protect [1423] the family? That is a constant theme in comments on this matter by contributors like Deputy Cooney, Deputy McCarthy, Deputy Treacy, Deputy Kirk and others.

An Leas-Cheann Comhairle: Information on John J. Ryan  Zoom on John J. Ryan  The Deputy should say the Minister, Deputy Cooney.

Mr. Tunney: Information on James C. Tunney  Zoom on James C. Tunney  It is “Deputy Cooney” because the Deputy does not agree with the Minister.

Mr. Taylor: Information on Mervyn Taylor  Zoom on Mervyn Taylor  Minister Cooney, also a Deputy. They say we have to protect the family. What family? In respect of that couple who came into my political clinic — and I am sure we have all encountered the same experience — which is the family? Is that the family who sat at the desk in my clinic — that man, woman and those two children? Should we not seek to protect them? Or is the family that man and his wife whom he left ten years ago, who has settled with somebody else, with children? Is that the family we seek to protect? Or do we have to persist in saying to that original family, as it was, of a decade ago: “You know, your position has to be protected. That is what we are aiming to do. We have to protect your position as of ten years ago”? Are we to say “It is recoverable. The situation can be retrieved. Go back. What you had with that woman who left ten years ago and who has established a new relationship, that is all indissoluble, that marriage that you had then is permanent and continues”? It is a bit like addressing oneself to a slice of roast beef on one's plate, saying to it. “You are not beef; you are a cow. There is hope for you yet. Keep hoping.” That is an appropriate comparison.

We believe that divorce should be made available to those people whose marriages are dead. We believe it should be available only to those people and not, for instance, to people whose marriages are going through temporary difficulties. We believe it should be available only in circumstances in which every effort has been made to provide for dependants. It [1424] is obvious that unless everybody understands and accepts the need for care we could end up, rather than helping people now suffering because of the unavailability of divorce, by hurting many more if we make it too accessible. For this reason a divorce law would have to insist that a heavy onus be placed on the persons suing for divorce. We could not envisage circumstances arising in which divorce could be made easily accessible. The whole key to our approach has to be in the phrase “irretrievable breakdown”. In other words, we believe strongly that, if a marriage can be saved, then there should not be the option of divorce; but if it cannot, then it is wrong to deprive people of that option.

This is not an issue that we can turn our backs on. It is as important an issue in its own way as any of the other major social and economic issues of the day. But if I would make any appeal in this debate, I would appeal for a calm, reasoned debate, in which we will try to respect the other's point of view.

It is not so long ago that I and many other politicians were subject to personal attack because we believe that we should try to legislate for reality and because we believe we cannot legislate to coerce people in the exercise of private moral judgments. There is always a temptation — especially when the basis of attack is personal and/or threatening, as some of them can be — to lash back, to attack the people who are attacking you. But it is not I, or any other politician, who is at stake here. What is involved — and the only issue that is involved — is the well-being and future security of hundreds and thousands of people who are deeply unhappy at present. It would be wrong for any of us to allow ourselves to become embroiled in religious or other arguments that are not central to the main issue.

This debate boils down to two questions: first, should the people of Ireland be given a chance to decide whether or not the Dáil should be empowered to legislate on the question of divorce in any circumstances? Second, if the people say “yes” should the Dáil be prepared to act to end the unhappiness of thousands of [1425] victims of broken marriages? My answer to both these questions is yes. Others will no doubt answer no, and I respect their right to do so. But, above all let us all give our answers without threatening anyone else and with respect for each other's opinions. There is no need for this debate to be divisive. It is my fervent wish that it will not be so.

I said a moment ago that this debate boiled down to two questions, and I would like to elaborate on each of them. The issue which, technically, we are debating in relation to this Bill is the issue of whether or not the people are entitled to make the decision. It is, I think, fair to say that in fact there is a fair measure of consensus on this point. While there may be great disagreement between those who are for and those who are against divorce, there seems to be considerable agreement that a referendum should take place.

I hope we would all agree also on the importance of full participation in the referendum. It is vital that everyone recognise that the right to participate in this, the ultimate expression of our democratic system, imposes its own obligation. An outcome that falls short of full participation will prolong the argument and the debate unnecessarily, and a process aimed at ending division will accentuate it. I would therefore seek the support of this House in urging every voter to vote.

I know I cannot expect the same level of support in urging people to vote “yes”. This debate has, and will continue to, arouse considerable argument on both sides of the question. Some of these arguments are well-intentioned, some are less so, some of them are highly technical, some very emotional, and some affect our more deep-seated instincts.

In this area, the various arguments surrounding the whole question of Church/State relations have once again arisen. I do not want to go into detail in relation to these arguments, but I was struck recently by a point I heard John Hume making in his address to the recent Annual General Meeting of the Labour Women's National Conference. Since the [1426] point is relevant to this debate, I would like to quote a short passage from that address:

It is not for me to go too deeply into questions which might be a matter of party political difference in the South. However, as a Northener I would make the observation that I and hundreds of thousands of Catholics live in a jurisdiction where there is divorce, where there is full legal access to family planning and where schools give sex education. This has not threatened anybody's Catholicism. Indeed it has not particularly offended anybody's Catholicism. I have not yet heard a Catholic bishop in the North say that his flock were poorer Catholics than those in the South because of the differences in legislation.

At the conclusion of this passage from his speech, John Hume notes that labels can be misleading. Labels can also be dangerous. There is no label more dangerous, in the context of this debate, than the one which says that those who are pro-divorce are, by definition, anti-marriage. This is a simplistic argument. It is never put as blatantly as I have just put it. But the innuendo is there all the time — that as soon as we allow divorce into the country, no matter how rigorously we control it, the very fabric of society will begin to crumble. The same argument has been put in relation to family planning, in relation to abortion, even, in the past, in relation to the health of mothers and babies.

I would not accept the accusation that because I am pro-divorce, I am anti-marriage, or against the family in any way, far from it. I do not consider it anti-marriage to recognise reality, that there are marriages which have failed, failed to the point that they are dead. I do not consider it anti-family to recognise that there are families suffering in broken and dead marriages, wives who have been neglected, deserted, or brutalised into leaving themselves, and children who have been traumatised, and, in many cases, alienated from the rest of society by the hostility and bitterness that can [1427] occur in these situations. And I do not consider it anti-family to recognise that there are many unions which are loving and stable over a long term but which have been criminalised by our laws.

I represent a constituency where all of these things have happened and are happening every day. In my constituency, the change proposed can only be for the better. There are people in my constituency for whom life can only be better if there is the chance of a fresh start. But that does not make me or my constituency unique — far from it. Every Deputy in this House has seen at first hand the dreadful effects of marriage breakdown. Every Deputy can identify families in pain, women under tremendous stress, children who have been ignored or badly treated. It cannot be said with any honesty that the measure we are proposing will make their situations worse.

We cannot identify the scale of the problem with which we are dealing — I admit that. But I challenge any Member of this House, with all the experience at our disposal, to deny that the problem is substantial and is growing and that in a situation where there has been a prohibition on divorce for 60 years. The growth of the problem is itself giving the lie to the logic of the argument that it is divorce that causes marriage breakdown. We know, and we know it as a fact, that marriage breakdown is growing, that divorces themselves have been on the increase — despite the absence of a divorce law. We have had to introduce and consider legislation to cope with the anomalies of foreign divorce for that very reason. If we were to fail to get to grips with the truth that marriage breakdown is a feature of Irish life, we would ultimately be failing in our duty as legislators.

The Bill now being debated, and the measures intended to follow it, are practical, realistic and compassionate measures. They do not provide easy divorce — but neither the Labour Party nor any other party have ever offered, or promised, or campaigned for, easy divorce. However, divorce has to come, because [1428] without it we cannot cope with a problem that is on the increase.

Let me reiterate my conviction that we in this House can and should combine to give to the people of this country the right to make the final choice. Let me appeal again that we combine to send a message from this House urging the fullest possible participation in that referendum. This is particularly important in the case of those to whom the future belongs. They must seize the opportunity now presented to shape that future with their own votes.

Finally, may I again take his opportunity to urge support for the referendum? Whether people are voting yes because they believe the availability of divorce, in however restrictive a fashion, is a compassionate response to the problem of marriage breakdown; or whether people are reluctantly voting yes because they see divorce as a necessary last resort — whatever the motivation, a yes vote, in my view, will be a vote for progress in tackling a difficult and troubled social problem. I will be campaigning for a yes vote, and I urge as many as possible to campaign with us.

Mr. Tunney: Information on James C. Tunney  Zoom on James C. Tunney  Initially, I might say I regret the circumstances under which the opportunity given to Deputies to speak on this most important matter are so restricted and that, accordingly, one must come in at short notice and endeavour to give one's thoughts on the matter as succinctly as possible. First, having listened to my friend, Deputy Taylor, speak, one could imagine that in the country in which we live at the moment there is no brutality, no deprivation, no unhappiness except in homes where, for one reason or another, the parents are not in agreement with each other. That is not correct. Deputy Taylor did not tell us about all the homes in his constituency where, arising from unemployment, inability to pay for requirements for people's health, the frustrations that exist in thousands of families are far greater than in the case to which he referred.

One could take it, if one wanted to be cynical. that perhaps the measure which [1429] is before us is, as Shakespeare would say, just an opportunity of busying giddy minds with foreign or other quarrels. The present major problem of this nation is not related to the matter referred to by Deputy Taylor. I noticed that he castigated Deputy Kirk, saying that he had given misleading figures about the number involved and quoted himself, as a fact, that 70,000 families were involved. There is no statistical evidence for such a number. I should have imagined that, if he were anxious to have it, he would have exhorted his Government to wait for the findings of the census when we would have a precise figure——

Mr. Taylor: Information on Mervyn Taylor  Zoom on Mervyn Taylor  They are in the Oireachtas report.

Mr. Tunney: Information on James C. Tunney  Zoom on James C. Tunney  ——before condemning Deputy Kirk for giving an assessment of it which must be as good as Deputy Taylor's in the absence of precise figures. If Deputy Taylor is, and I am sure he is, concerned about deprivation, brutality and the alienation of young people from their parents in the totality, he would have spoken here more frequently about the terrible situation arising from unemployment, the appalling frustrations from circumstances in which people are hungry in their homes, leaving those homes or breaking them up because of reasons which cause great unhappiness and distress to the parents. The parents have nothing to do with the problem; rather it is an ineffective Government who are failing in their social and economic plans who have caused it.

In respect of the matter before the House, I will give my thoughts on it in the ten or 15 minutes I have. One cannot say straight away that one will not be emotive. In everything we say or do, naturally there is an element of emotion. Obviously, there will be traces of our own upbringing and experience. I am very happy that I came from a home where the ideal of marriage was practised and lived out. I cannot remove from the scene my mother who is still alive, the remaining half of that marriage which gave to me the happiness, education, philosophical [1430] outlook and everything that I have. I must, therefore, indicate my regard for that institution.

In respect of myself, having followed that ideal, mine has been a successful union and I hope the offspring of it, my family, will follow on in the tradition that is ours — a tradition based to some degree on our religious upbringing, what we believe in and accept as the ideal situation.

Here I should like to make one point for the legal men and others who would claim that what is happening now is being done in the interests of liberalising people, making a pluralistic society. I ask that they would not remove from that licence the liberty that any person, boy or girl, has in the matter of embarking on marriage, to follow on in the traditional approach and that it should be a marriage for life. They must concede that ideal, as I would call it, to that person. If this legislation goes through, you remove that liberty from either party who will suffer. Perhaps soon, some of the spokespersons here who would claim that this is being done as a progressive, liberalising, pluralistic measure, would explain to me how that accommodates the ideal of the party to the marriage who wants it to continue for life. Are they not taking from him or her the understandable, natural and desirable right that it should last for all time?

The exhortation has been made that whatever comments are made here should not disturb in any way those outside the House who are trying to assess the situation. In the past week I have addressed myself to many of my constituents, when the opportunity was available to me. I addressed them for my party as their elected representative — not as enjoying the great office I hold at present of Lord Mayor, because I would not presume to speak as Lord Mayor in that respect but as an elected member of Dublin North-West.

I can say to this House that it is not a major problem in the minds of people. I said that they should vote one way or the other. They could have far more important [1431] things to be doing. I hope the discussion will be such that it will encourage them to come out and cast their votes. If I were a mean politician, as oft times those of us who are upholding the traditional are accused of being, I would be following the results of the polls which have come out which have indicated that the referendum will be carried. I hope that, in respect of the few words I have said, I will be credited with having the courage of speaking for what is at this moment presented to us as a minority. I am not convinced that what has been indicated by the polls will be revealed presently.

Naturally, this is a matter of conscience but conscience also requires of us who are elected Members of this House to have some regard for the responsibility we have towards the people who sent us here. I do not think that, in respect of any measure coming before the House, one can move oneself away and — I am slow to use the verb — divorce oneself from the fact that it is a matter affecting our people. Therefore, one cannot confine it solely to oneself. I notice that people who are happy to announce — as is their entitlement — that they are for divorce seem to get a general welcome all round but the bona fides of anybody who indicates that he or she is against it seem to be questioned even by people who simultaneously claim that they want to get a balanced presentation of the facts.

Deputy Kirk made one very important point on the economic situation which will arise in respect of the courts. Naturally, I can appreciate that all legal men will have a very special interest beyond the question of their consciences and beyond the fact that they have this feeling for releasing people from the problems they may have. I understand from Deputy Flanagan and people who have examined the situation that it may cost £50 million per annum, in one way or another. The question, therefore is: who is going to pay for that? It has to be the neighbour, not the State. It has to be the neighbour of the person who is so [1432] afflicted and who finds himself or herself in this unhappy state.

If you extend the logicality of that, there are many other areas in the country where the neighbour might be obliged to pay to take other citizens out of very serious problems which were not of their own making. Governments are not prepared to oblige that person. Why in this case would the Government be so prepared to expend on an undisclosed number of people £50 million per year in legal fees or on the unfortunate offspring who will suffer in settlements of that kind? I am at a loss to know why there should be such preparedness to rally to the cause of people some of whom will find themselves in that position because of the fact they did not embark on marriage in an idealistic fashion and embarked on it without making the necessary preparations and without realising the sacrifices?

All of us who are married realise the shock it was for us to find ourselves in the new state where, arising from the contract and the promises we had made, we had to forego many of the aspects of our lives which brought so much satisfaction to us before we entered into this state, but we did it in deference to the promises we had made. In the same fashion, the lady would find herself having to break away from what were for her certain aspects which were more enjoyable than the difficulties she has in tending to and looking after children or household requirements but she did it because she felt that, conscious of the promise made, she was so obligated. No marriage has been happy unless there has been that preparedness to make a success of it.

I would see a difficulty here contrary to what Deputy Taylor said in respect of the numbers involved. Of one thing we can be sure. There will be a greater number involved in the future if this proposal is carried. What Deputy Taylor tells us is a small number, we know from looking at other countries will be a greater number in future years if the referendum is carried. There are those who [1433] would say that people who find themselves in this unhappy and unwelcome state are entitled to a second chance. If we analyse that, figures are there to show that a great number of those who get a second chance look for a third one. Those who get a third will look for a fourth. Therefore, it is not a case of giving people a second chance. The figures are there to show that those who benefit, if that is the word, from the second move on to a third or fourth. We have to take into consideration the consequences of that.

As a parent and teacher I have always been happy to defend young people. When a fellow teacher sent to me a student who in his or her opinion was in need of a reprimand, I found myself invariably, though not publicly, more in sympathy with the student than with the teacher. I have an interest in young people which I hope compares with that of any other Member of the House. I know young people who are already the victims of the unhappiness which Deputy Taylor spoke about. I know, too, that there is a greater unhappiness among those than there is among those children who live in circumstances where the parents have their disagreements. Nobody could condone brutality. Straight away, I would have either party who was guilty of that subjected to the laws of the land. I would impose big sentences on them and I would be happy to advocate that the State or the neighbour should support those children.

I am not talking now about cases of brutality but about cases where either party takes a fancy to someone who at some given stage is more attractive. I can say from my experience — and I have questioned young people with a certain discretion, and I hope with a certain degree of good manners — young people would much prefer to have soldiered on in the circumstances that existed. There are those who can present people who will say they were happy that their parents parted. I have not seen that. I remember last year reading an article written by an accepted authority in America who confirmed the same position.

[1434] What provision are we making for those children? Let us assume the male has said he will take responsibility for the maintenance of the children. I do not think there is any provision for the extent to which he must be able to disclose. We all know in the time which exists certain judges will accept a presentation of facts that do not seem to live very long. Are we going to tighten up, so there will be absolute proof? I do not think so. What are the provisions for the education and maintenance of the offspring? Who will care for them? What about the unhappiness which will be created there? Deputy Taylor says, for an undisclosed number of people who find themselves in this unfortunate position, we must have this referendum.

We must be concerned for the greater good. This must take precedence over that which affects a small number of people. There is no doubt at present that the greater good will be served by alleviating the causes of unhappiness in several other areas of their lives without spending so much money on this one. We also know that the problem of 30,000 or 35,000 people at the moment will be extended much further afield if this referendum is carried.

I wish to refer to the question of religion. We pay far too much attention to interpreting religion either by the ministers or by the laity in a fashion that it does not deserve. Since I came to this House no member of any Church ever lobbied me for anything. I can state openly that I have some great friends in the Church of Ireland. I had the pleasure and the honour of praying with the Jewish community recently. I am very friendly with members of all Churches. Nobody ever made representations to me in respect of my membership of my Church, which I am very happy to be a member of. I do not think any other Church would have me. The Church to which I belong is a fabulous Church in so far as they stipulate certain commandments and guidelines but they will forgive us if we do not live up to them.

Last weekend I had the pleasure and the honour of being in Normandy with [1435] the Archbishop of Dublin. I spent many hours conversing with him. Never once did he or the preacher who was with him mention the debate that was about to begin in Dáil Éireann. That is where the distortion and the emotion is being brought into it. I am happy that we have so many religious leaders. We would all be better off if every Member of whatever religion to which he or she belongs would practise as sincerely as they can that which they claim to believe in. The ultimate position would be a much better one.

I do not think, in regard to religion or anything else, that one benefits by reducing everything to the lowest common denominator. I reject the condescension that we are not opposed to the Catholic Church saying how they feel. We live in a democracy. We accept that there are Churches. That note of condescension to any Church should be avoided. One would imagine that it is their obligation to comment on matters that affect them in any fashion they wish. It should be unnecessary for anybody here, especially Ministers, to say that we are not opposed to comments by the Church. I do not reject the Church's right to make a comment on this vital matter. I am happy that they have made a comment. I would be very disappointed if all the Churches did not indicate how they feel. I am also happy to know that most of the Churches share the ideal that I, members of my family or my friends have that, if and when they get married, there is evidence to show that the successful marriage is the better one for society and for the offspring, but that it does not come without efforts being made.

If we introduce divorce, in the name of satisfying the victims to date, we are to some extent opening up the opportunity and presenting the excuse to people, who ordinarily would have worked to make their marriage happy, to go the easy way. This will lead to unhappiness for themselves, for their children and for society and at a cost to other innocent people who will have to pay for it. In the case of [1436] a woman who does not intend to get married, as is her right, if this legislation goes through settlements will have to be made in respect of maintenance and legal fees to which that person will have to contribute. Is that fair? I am convinced that marriage for life is preferable to marriage for shorter terms, and I hope that the result of the referendum will be to reject the proposal for divorce.

Minister of State at the Department of Finance (Mr. J. O'Keeffe): Information on Jim O'Keeffe  Zoom on Jim O'Keeffe  I do not accept that the issues involved in this debate are as simple and clear cut as represented by either the pro-divorce or anti-divorce lobbies. For that reason I believe that the proper approach is to weigh up the legitimate arguments on both sides and then to come to a reasoned decision based on what is, on the balance of probabilities, considered to be in the best interest of society as a whole.

That approach of necessity implies the use of language in expressing a view which is both considered and moderate. It also involves an honest presentation of the facts in which the abuse of statistics and the introduction of emotive argument have no part. That approach furthermore implies that the issues will be calmly and logically considered by all in a manner which rejects the type of automatic response portrayed by those with closed minds typified by the argument to end all arguments —“don't confuse me with the facts, my mind is made up”.

In many ways particularly when we are dealing with the complexity of human relationships, law can be a crude instrument, providing the necessary legal framework supportive of the position of the majority but by its very rigidity unable to provide all the answers to the problems posed by personality defects, differing degrees of maturity, basic incompatibility and the manifold other difficulties which can arise in interpersonal relationships.

What is clear, however, is that there must be a legal framework within which an attempt is made to establish structures and procedures designed as far as possible to deal with those problems. The Bolsheviks found out very quickly after [1437] their revolution that totally dismantling the existing legal framework in this area was not the answer and had to hurriedly construct another in an attempt to provide a satisfactory replacement.

In this country it is clear that we do have a problem of marital breakdown. It is also clear that this problem is of significant proportion and furthermore all the evidence suggests that this problem is increasing. Nobody suggests that there are ideal ready-made solutions to these problems. This does not take from the fact that there has to be an honest and sincere attempt to find solutions which on the balance of probabilities are best suited to our society as it is, and as it will be in the foreseeable future.

The Report of the Joint Committee on Marriage Breakdown was helpful in providing an analysis of the problems and suggesting possible courses of action which might be followed.

The statement of intentions of 23 April was the considered response of the Government. Apart from the divorce issue, virtually all aspects of that statement received strong commendation and support. I myself am particularly anxious to see early legislation providing for an increase in the marriage age to 18 and the provision of minimum notice. Similarly, I want to see — irrespective of the result of the referendum — the implementation of the proposals dealing with Family Courts, judicial separation, the introduction of the conciliation and mediation concepts and the other reforms referred to in that statement of intentions.

The remaining area is whether we should remove the prohibition on the enactment by the Oireachtas of laws providing for divorce. On that issue there are different viewpoints but it is now fairly clear that there is a majority view that this Bill should pass through the Oireachtas so as to enable a referendum to be held and the people to decide. The real question at issue in this debate, therefore, is not the narrow one as to whether the Bill should go through but rather the broader issue involving the expression of views as to whether people [1438] should vote yes or no in the referendum.

On this point there is a duty on all to weigh the issues carefully. There is the entitlement of all to express a viewpoint and I feel there is a leadership responsibility on us as legislators to offer an opinion.

In this regard I fully recognise the leadership responsibility of others and in particular the Churches to also offer an opinion as to what they see as being in the best interest of society in this country. At this stage, it is clear that all the minority Churches and religions, with the exception of the Church of the Later-Day Saints do not favour the retention of the blanket prohibition on divorce in the Constitution and consider the availability of divorce legislation as a basic right notwithstanding that certain of those Churches as a matter of internal discipline disapprove of divorce.

The position of the Catholic Church, of which I myself am a member, is different. Apart from the limited areas of divorce covered by the Pauline and Petrine privileges which have a little direct relevance to this country and its annulment procedures, its Code of Canon Law provides that a marriage which is ratified and consummated cannot be dissolved by any human power or by a cause other than death. However, while the Catholic Church does not seek to have Catholic doctrine enshrined in our laws, it puts forward the view on sociological grounds that the change proposed is not in the best interests of society. It is a view which is well argued and well presented and one which deserves to be fully considered.

All the foregoing does not take from the fact that ultimately it will be the duty of each member of the electorate to weigh all the views presented and themselves decide on the course of action which they see as being best for the country as a whole. On that point I feel that we should come to our own independent decision noting, but not unduly influenced by, changes which have taken place in other countries.

The approach which I suggest involves a careful weighing of the arguments in favour of divorce and those against. [1439] These are set out in detail in the report of the Oireachtas Joint Committee and undoubtedly in the course of the lead-up to the referendum further points of view on both sides of the issue will emerge.

As I see it, there are substantive arguments for and against. The present position does give rise to injustice for some whose marriages have irretrievably broken down and who have become or wish to become involved in other relationships. It is also clear that the absence of divorce legislation has not prevented marital breakdown from occurring and indeed increasing.

The contrary argument is that the introduction of divorce legislation would undermine the institution of marriage and so accelerate this trend. The point is made that those having difficulties in their marriage would work less hard at achieving a solution to those difficulties and that thus the facility of divorce and remarriage might undermine the stability of successful marriages.

A particular area of concern for us all is whether the introduction of divorce would have a detrimental effect on child development and would increase the number of children whose upbringing is damaged by the fact that they come from a broken home. The opposite argument refers to the position of children — unloved and uncared for living in conditions of marital discord manifested by argument, drink and drug abuse, violence and cruelty.

Clearly, there is no easy decision and no ideal solution. Whichever way we go will bring its own share of problems, and indeed solutions proposed for one set of circumstances may give rise to problems in others. The question to be faced is whether the removal of the prohibition followed by the introduction of divorce in limited circumstances is, on the balance of probabilities, the least imperfect way of dealing with the problem.

Initially, my view was that the introduction of divorce involved a leap in the dark and that in the absence of any certainty about its social and other consequences caution should prevail. On [1440] reflection, however, it seems to me that if that were to be the reaction to all major economic and social issues then fresh thinking and innovative action would have no place whatever in the development of our country.

Accordingly, the proposal has to be fully considered on its merits or lack of them. I have taken into account the various arguments adduced and reasonably argued both in favour of and against the proposition. In coming to a conclusion I have been particularly influenced by the restrictive nature of the proposal, the requirements in relation to adequate and proper provision for dependent spouses and children and the inbuilt constitutional safeguards preventing a situation of divorce on demand.

In an ideal world I do not think divorce would be an issue. But the nature of mankind is such that we do not live in an ideal world. We must therefore search for — if perfect answers are not available — those which are least imperfect.

On the balance of probabilities I believe the proposal before the House is the least imperfect answer to an enormously difficult and complex problem. Having arrived at that considered conclusion, I recommend the Bill to the House and also to the people of this country.

Mr. Enright: Information on Tom Enright  Zoom on Tom Enright  Before Deputy Wilson begins I should like to point out that three speakers have been offering, Deputies Allen, Power and I. I do not wish to occupy any of Deputy Wilson's time, but perhaps we could arrange something which would allow all four of us to speak for some minutes.

Mr. Wilson: Information on John P. Wilson  Zoom on John P. Wilson  I have been given until 3.10 p.m. I always like to oblige people, but I had better get on to say a few things. I will do a quick run through the Taoiseach's speech and make some comments on it. He set out specific objectives for the good of society, catering for diversity of opinion and taking cognisance of and the need for compassion. As far as diversity of opinion is concerned, when people such as anarchists were in a position to hold power in an area they had to [1441] agree to some kind of skeletal system or structures through which they could operate in society. They did it in southern Spain during the civil war where they had full possession.

In his speech the Taoiseach said: “On the one side there could be a series of reiterations of the “conservative” position, that is, that divorce is contrary to the theology and at variance with the ecclesiastical law of the Roman Catholic Church...” The use of words “liberal” and “conservative” can be challenged from a philosophical point of view. Deputy O'Keeffe said that the USSR is probably the only country which set out with total freedom for divorce and then gradually had to try to win back the position through more restriction than earlier. It is as well to say that logically one does not link with conservatism any philosophical system dealing with social good; and it is important to realise that we as legislative sociologists have the same object in view, the social good of our people.

I found the substance of the Taoiseach's speech acceptable. To a great extent he marginalised the divorce issue but I agree with him that there should be a serious attempt by this House to deal with the problems that have arisen in marriages in the recent past. The fact is that people are getting married at too young an age and when they are not properly prepared. The thrust of the Taoiseach's argument was that, if the age were raised and if there was sufficient dedication from the Legislature and from the community in general to dealing with preparation for marriage, we would not have such serious failures.

No reasonable person could quarrel with that point of view. Irrespective of whether the referendum is carried — I shall have something to say later about my private views — we should dedicate ourselves to that area of reform mentioned by the Taoiseach. There should be a commitment given in respect of the costs, the counselling and attempts at forming a structure for reconcilliation. That does not necessarily have to be linked to this Bill. The suggestion made [1442] by the Taoiseach was an excellent one and it should command our future attention.

Deputy Taylor mentioned a figure of 70,000 people involved in broken marriages. Figures have been pulled from the air in many instances but, quite fankly, we should have harder figures in respect of the number involved. The Taoiseach spoke about the argument put forward that, because of the availability of divorce, marriages would break up just because divorce was available. He expressed his opinion — I do not think there is much validity in it — that he did not think that would happen to a great extent. I think we should have waited for the statistics. Frankly, I do not know why there was a sudden decision to hold the referendum now. I am not saying it should have been put on the long finger. I am very glad the people are getting an opportunity to make their own decision but it is my view that we could do with statistics to help us.

For example, in my county, Cavan, there is the horrific statistic that there are 3,000 fewer women than men in the area. It is a statistic I would not have imagined to be true until I read it in the returns from the 1981 census. We are awaiting the result of the most recent census to see if the position has changed. There seems to be here an opportunity for social engineering of some kind, for the provision of employment for women in the county. Obviously the disparity in numbers is not a natural one and there must be some remedy for it. It is demographically unstable.

During the debate there has been a lot of talk about property and about social assistance and support. I would go a long way with Deputy Barnes on how we have fallen down as legislators with regard to certain areas of our national life, but I do not agree that it is because of what is contained in the Constitution. I submit there is nothing in the Constitution that inhibited this House from dealing with, the women's problems she dealt with, although I do not think they were totally relevant to the Bill. She blamed the Constitution [1443] but she should have been blaming the legislators. In addition, she was somewhat selective because she did not give due credit to the present leader of Fianna Fáil and the considerable advances he made by putting the 1965 Succession Act on the Statute Book.

A number of speakers, including the Minister for Social Welfare, referred to the costs that inevitably will fall on the State if the referendum is accepted. The history of the State so far in dealing with the unfortunates who require social assistance is not all that good. I have evidence that women in my constituency are being discriminated against. When they apply for a non-contributory old age pension their husbands who had been getting some allowance for them have found that their pensions have been cut, but when the pensions for the men and women concerned have been added together they are substantially less than what was obtained by the men previously. That is blatant discrimination against women.

Reference has been made to the State having to pay vast sums but I am chary of using figures until we get hard facts. If the charge falls on the Exchequer, I am worried about the commitment of this House. I do not know how one could even give a plausible estimate of the cost to the State. Perhaps if one divides 3.7 million into 50 million and calculates what that fracton would be in the light of the cost in Britain one might reach a plausible conclusion, but I am not sure of that.

Attempts have been made to misrepresent the Fianna Fáil position with regard to the referendum. I wish once more to put on the record of the House our position. In essence we stated that this important question should be left to the people as a whole to decide, that the party would not oppose the proposal to hold a referendum, that we would not campaign as a political party but that individual Members of the Oireachtas were free as individuals to express themselves on the matter in public or in private.

[1444] That conclusion was reached and the statement issued after due consideration and debate. We thought we would not be serving the interests of the country properly or the debate by making it party political. I must say I am disappointed by the attitude of the media. I do not know if they have decided that the whole business is not aggressive enough or that not enough skin and hair are flying, but they are trying in some way to misinterpret what we have been doing. I have heard it is difficult to get the Government side to take an interest and the only way they can be prodded into doing so is to wave the red rag of Fianna Fáil at them. I understand that. It is a pseudo method of arousing interest but the truth should not be a victim in such a campaign.

Mrs. Doyle: Information on Avril Doyle  Zoom on Avril Doyle  No fairy stories. This is too serious.

Mr. Wilson: Information on John P. Wilson  Zoom on John P. Wilson  The Bill before the House is designed to ask the people to delete the words of article 41.3.2º of the Constitution which reads that

No law shall be enacted providing for the grant of a dissolution of marriage.

We are asked to substitute:

Where, and only where, such court established under this Constitution as may be prescribed by law is satisified that—

i. a marriage has failed,

ii. the failure has continued for a period of, or periods amounting to, at least five years,

iii. there is no reasonable possibility of reconciliation between the parties to the marriage, and

iv. any other condition prescribed by law has been complied with,

the court may in accordance with law grant a dissolution of the marriage provided that the court is satisfied that adequate and proper provision having regard to the circumstances will be made for any dependent spouse and [1445] for any child of or any child who is dependent on either spouse.

That is what will be put before the people.

Several people have commented on the adversarial system in our courts. I have a particular grouse about that in ordinary cases. I know of cases where reputations were wrongly destroyed by able and powerful advocates grinding witnesses into the ground. A citizen, even an errant one, can be ground into the courtroom floor. Whatever happens we should decide that that is out as far as matrimonial problems are concerned irrespective of what happens as a result of the referendum.

I am approaching comment on this matter with some trepidation. I find much commentary to be a mish-mash of various philosophical theories the origin of which at times has been lost. The history of marriage law in England has been an influence on thinking here. Until 1922 the courts owed their allegiance to His Majesty. Up to 1857 in England the ecclesiastical courts dealt with all matters pertaining to marriage including the most serious one at that time which was judicial separation. The Church was an established one. The State recognised and enforced the decrees of the ecclesiastical courts. That is the only way they could be brought into the secular social order. In 1857 the British Parliament transferred the powers of ecclesiastical courts and also some of its own powers to a division of its High Court now in the unique role of performing a temporal and spiritual function. There was an inherent absurdity in the new position, an absurdity which diminished as the spiritual sank out of sight in the community.

Lord Devlin, a noted Liberal Lord of Appeal in Britain deals with the matter in his lecture “Morals and the Law of Marriage”. The words most frequently used by him in his lecture are “free thinker”. He is constantly conscious of the free thinker's point of view. In that lecture he stated:

Society has a right therefore to define the status of marriage in accordance [1446] with the ideas of the majority and to refuse to confer it upon those who do not conform. A society which permits no divorce at all may still properly regard itself as a free society. If the general feeling in that society, whether it springs from a religious source or from any other, is that marriage is something which ought to be dissolved only by death, then that is the sort of marriage that that society is entitled to have.

Do not forget that Lord Devlin was writing from an English background for English society. He further states:

I do not think that in Britain today there is a general feeling of this sort.... I believe that this is the morality which, outside religion, prevails in Britain today.

He was right. As far as Britain was concerned that was rational thinking. We should dwell on that quotation — society has a right therefore to define the status of marriage in accordance with the ideas of the majority and to refuse to confer it upon those who do not conform. That is what we are doing. The ideas of the majority will be clear to us at the end of June. We in Fianna Fáil are anxious to ascertain what they are. We are being told by various organs that they know the ideas of the majority.

Patrick Devlin speaking in Britain used the words “outside religion”. There is no way that any significant conclusion can be drawn in Ireland in this matter outside religion when, as recently as 1984, the ESRI survey of religious beliefs, practice and moral attitudes showed that over 90 per cent of those questioned for the 1984 sample said that religion was important in their lives, that they felt a personal need to believe in God and that they were unwilling to give up their religion. On the Devlin definition that can only point to one conclusion. The religious element is still important in Ireland. It may not always be so but as of 1986 it is so. That is why it is important that this referendum take place now.

What worries me as a legislator in a [1447] society such as ours is the thought that individuals may somehow be ground in the majority mill. This is a problem which has exercised the minds of political philosophers from the Greeks down to modern time. I tend to the belief, despite a certain inherent harshness in it, to look at it this way: a Moslem applies for Irish citizenship. He reads our Constitution. He does not like the ban on divorce. He does not like certain other features of our laws or life in our society. However, he weighs up the advantages and disadvantages and opts for citizenship. He has assumed the obligations, to the Constitution among others, as well as the advantages that will accrue to him from being a citizen of this country. By implication all citizens do likewise. It may be argued that the Constitution was passed almost 50 years ago but it should still command respect until changed. That is why I would take issue with Deputy Monica Barnes. Whether it is changed or not it must still command the respect of our citizens. It may be argued that the Constitution was passed almost 50 years ago and that only a minority of living citizens today had an opportunity to approve it. Nevertheless, there is an obligation to respect it and conform to it until it has been changed, if it is to be changed, in the manner laid down by its own articles. Similarly, there would be an obligation on me to respect and conform to a new provision if the people so decide. It is important to be clear about that even if I, as an individual, regret this conclusion.

Fianna Fáil decided that Deputies in their individual capacities would be free to participate and indicate their views on the divorce issue. I take this opportunity to do so now in accordance with the terms of the statement that we issued after due consideration. I have referred already to a false dichotomy between liberal and conservative. It is a handy label but any thinking person would know that the definitions are in no way tight. I cannot understand how anybody styling himself a liberal cannot take it that the Protestant bishops, the Catholic bishops, the Jewish [1448] rabbis and the Muslims are all entitled to express their views on an important constitutional issue like this and we are entitled to listen to them and reject their views if we so decide.

I asked if it was contended that the marriage laws of the USSR are mediaeval as the false definitions would lead one to believe. There is an assumption that people who have religious beliefs, and consequently political beliefs, are moral cretins, that somehow or other they have to look over their shoulder at a bishop. It is common for it to be said that he is afraid of a crozier or a bolt from the blue. There are thousands of citizens who have religious convictions. We are not dealing with religion here and Lord Devlin said he was excluding religion from his considerations. People with religious convictions do not have to look to anybody or consult anybody about this matter. I have such a conviction. I am not beating any drum about it. It does not make me intolerant of any diametrically opposed view and it should not make me intolerant of a diametrically opposed view. But I have a deep conviction as far as marriage is concerned. It is related to the religion which I hold, and that is, that marriage is indissoluble and it is a sacrament. It does not lead me to feel an intolerance towards someone who has a different belief and if such a belief is incorporated in the Constitution as a result of the referendum I will not change nor will I begrudge the new status to whoever thinks differently.

I welcome the promise of the Minister in regard to compassion. I am afraid that there was a lot of talk about property and about division that is unrelated to the reality of life in this country. The property is very often not there and the division of imaginary property has been at times a waste. Arguments have been put forward by various people to the effect that if this referendum is passed we will have started down a slippery slope. I believe this. We cannot avoid the evidence from the UK and the US. We will have to be prepared to be more liberal-minded with regard to the provision of social welfare because children will suffer [1449] otherwise. I welcome the promise of a court. I hope that comes anyway. I welcome the promises in regard to the age of marriage and I hope that comes.

A few years ago Dr. Kieran Tandy did a survey of Denmark and he pointed out that in that country marriage was nearly a thing of the past. I, as Minister for Education, had a long talk with the then Minister for Education in Denmark, a woman who was a Lutheran, a graduate of the University of Copenhagen and she was exceptionally worried because she felt that very shortly she would have very few pupils for her school. We had a different problem at that time. As far as my own conviction is concerned, neither Bishop Kevin McNamara nor Pope John Paul has anything to do with it. It is my own personal conviction. If my conviction conforms with theirs it is because we share a common faith. But, there is no pressure, political, moral or otherwise being brought to bear on me.

I intended to go through the speech of the Minister for Justice in some detail but somebody has appealed to me to cut my speech short and I so do. I have given my own views on this. I think the debate was conducted in a friendly spirit despite the fact that attempts have been made to indicate that it was otherwise. It was a useful and intelligent discussion and now we will leave it to the people to make their decision.

Mr. B. Allen: Information on Bernard Allen  Zoom on Bernard Allen  I am told that I have ten minutes. I have been trying for three days to get in and I find that now I am confined to ten minutes. I would like to protest at the selfishness of some people who spoke for an hour or an hour and a half in the last few days. There were many more who wanted to speak.

I look upon the referendum as an instrument to introduce legislation to deal with the realities of the problems that exist here. It is a tragic problem and it is still being handled like a hot potato by many of our legislators. They do not know which way to jump and will not show their hand and I regret that very much. We must all admit the reality of the situation and the size of the problem [1450] and the sooner the better because we can then bring about some solution to the problems facing so many people and causing so much misery throughout the country. Every Deputy in this House must have either a member of his family or a close friend with a serious marital problem who is trapped in a situation that they cannot get out of. We are attempting to bring in very restrictive legislation which will deal with the problem. Unfortunately, the attempts being made to deal with the problem are being met in some quarters by political opportunism. I know even at this stage that the forthcoming referendum campaign will be used by some individuals as an opportunity to gain political advantage and to character-assassinate some of the people in this House. The leaflets are around already. I hope that in the end the campaign will show that there is charity and Christianity still and that the result will lift the veil of hypocrisy that exists in relation to marital breakdown. Everybody in this House should consider the known number of broken marriages that there are and the many cases that have not been documented where people are suffering in silence.

We have to take into consideration the number of separated couples who are living with partners who are not their spouses and the number of couples who are living together without having gone through the rite of marriage. We also have to take into consideration the many legal complications that have arisen and the problems these people have stored up for themselves and the children of the unrecognised partnerships. We cannot run away from reality. We cannot run away from the issues or from the duties we were elected to carry out. The real business of politics is leadership.

I regret the hypocrisy that has been shown by so many Deputies in their failure to face up to reality and their apathy to this problem. At times we wonder why young people have such a low regard for Members of this House and why there is so much apathy at election time, but what has happened here in the past few weeks is one of the reasons that there is this [1451] apathy towards this political system.

We have been told that there is not a problem with marriage breakdown and that we should face the real problems of unemployment and taxation. I have also heard Deputies say they have not been approached by any of their constituents about this Bill. I wonder where these people live. As public representatives the challenge is to face up to the real problems facing this country. One of these problems is the anomaly created by the annulment laws of the major church. That has to be faced. That church allows annulments but the civil law will not allow or recognise remarriage. That anomaly has to be changed. A change in the civil law permitting divorce will not force anybody, be they Catholic, Protestant or Jew, to seek a divorce if they do not want one. They will still have free will. However, the legislation will effectively deal with these anomalies. The unreal situation which has existed for so many people who received annulments has led to extraordinary confusion and hurt. There is a duty on this House to get rid of these anomalies and to give leadership.

I hope we will not continue to reduce important issues like this into inter-party squabbling and that the referendum campaign will be fought on the facts, not on some of the stories which have been manufactured. On referendum day I hope people will not be so confused that they will opt out and refuse to vote. There is a responsibility on all politicians to put the facts fairly and squarely to the people so that they can make their decisions.

I do not agree with Deputy Kelly when he says that divorce is not a civil right. I believe it is. Many reasons may be put forward to show that divorce is not socially desirable. The argument is being put forward that the availability of divorce will encourage people to take marriage less seriously. I believe the opposite to be true. The partners in many marriages take each other for granted because there is no escape for either of them. I believe the existence of divorce will force people to face reality and to work hard at their marriages. Another argument being put [1452] forward is that the country will be plunged into an island of immorality. That is an insult to the people in the northern part of this country. They are as moral, if not more moral, than we are.

I hope this debate will not develop into a Church/State clash and that the issues will be discussed in a balanced way. The people will have the final say on how to deal with marital breakdown. The leaflets are already in circulation — the lies and the slanting of the facts. If they continue to circulate, God help the public. In dealing with the religious of all persuasions, I have found they are concerned people and will express privately their concern about the problem of marriage breakdown. Some of the people who show least charity, some leaders in our society, set themselves up almost as the Khomenis of this island. They are the defenders of the faith and they are not showing charity. I regret I have to cut my contribution short and yield to Deputy Power.

Mr. Power: Information on Patrick Power  Zoom on Patrick Power  It is remarkable that a Government who a short time ago committed themselves to careful costing of all projects put before them should embark on this major change without costing it. If divorce is available to anyone, it must be available to all. A wealthy person can make arrangements for his former wife and their issue and any subsequent alliances he might make, but the man on the dole, if the same facilities are to be extended to him, will need support from the State. Deputy Dukes as Minister for Finance when speaking in the Dáil on 2 February 1983 as reported at column 912 of the Official Report said:

. . . .it is essential to the process of informed discussion that the participants have access to as much as possible of the background to the budgetary and expenditure data they are discussing...

He also said that better information was a prerequisite to informed debate. They are laudable sentiments. As Minister for Finance Deputy Dukes laid down the rules but as Minister for Justice he forgets [1453] them. He said his Department had not worked out how much the provision of divorce would cost the State — I am sure he meant the taxpayer or the applicant. Only yesterday I heard Deputy Skelly express his satisfaction that the costs would be taken care of by the State. The uncertainty about the cost of divorce contrasts very vividly with the brightness of Minister Dukes's successor in Finance, Deputy Bruton. He was very quick off the mark with immediate estimates of the cost of items which were casually thrown out at the Fianna Fáil Árd Fheis. It is a pity the same facilities and the same information are not available to us for this divorce legislation. It is my view that if the Government unveil a package they should also give us the facts. So much for better information being a prerequisite for informed debate.

A look at experiences elsewhere would make it possible for us to see that there will be big costs involved — free legal aid, more judges and registrars, more officials and more social welfare officers. All that will fall on the taxpayer. The British experience has been that these have become necessary as the increasing divorced population enlist the aid of various types of support. Social workers would be needed to help discarded spouses and the children of divorced parents. The costs of these will fall on the State. They will arise from the impoverishment of the partners in the break-up. For example, a wife who is divorced loses thereby her right to receive a pension from her former husband's employment should he predecease her. Equally, she would lose her rights as a widow under national insurance and as a result would become the responsibility of social welfare schemes. The children, too, would be likely to be more of a burden on the taxpayer. Where would they stand in regard to free education? Would they qualify for grants up to university level? On what basis would the means test be taken?

It has been accepted that divorce will mean a diminution of the standard of living of both parties and of the children. This affects what the State will have to [1454] pay out, and it may affect what the State can take in in income tax. For example, if a divorced man makes a legal settlement on his former wife out of his income, will he get an allowance on that? If he marries for a second time may he claim a tax allowance in relation to this second marriage? Will he be able somehow to benefit in regard to the payment of his former spouse also? If he is allowed to claim on the double the State will lose revenue. Either way the taxpayers will face a substantial increase in taxation to meet the cost of the present proposals.

If we were to vote against this in the House — I for one do not intend to do so — we would probably be classified as ageing politicians, backward, conservative, rural dwellers, and it would be said that we denied the people their democratic right. We are prepared to let this Bill go to the people. Like the Minister, I represent Kildare, a little constituency that has a little bit of everything and is a cross-section of Ireland with many decent people in it. I will vote against the amendment in the referendum, but I am prepared to accept the wishes of the people and I look on this as one clear case where the people have the right to decide what they want.

Minister for Justice (Mr. Dukes): Information on Alan M. Dukes  Zoom on Alan M. Dukes  First, I thank Members of the House for the contributions they have made to this debate. The debate has covered all of the principal features of the Bill and of the legislation which will be required when, as I am confident will be the case, the proposal is passed by the people. I intend to reply to the main points raised, but first let me say that I regret that some Deputies have resorted to the use of language which has no place in this debate. I refer to such phrases as “constitutional Frankenstein”, ”constitutional orphans” and references to turkeys and Christmas. On the points of substance there is no foundation for those or similar terms, and I found them totally out of place in this debate. Some of those remarks bear the stamp of a legal mind not accustomed to political debate attempting to find [1455] resounding phrases and ending up by being grotesque.

Mr. Wilson: Information on John P. Wilson  Zoom on John P. Wilson  The Minister is breaking nuts with a sledgehammer.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  I have a special word to say to Deputy Woods. His tactic in the speech he made the other morning was quite clear. He is willing to wound if he can, but he is afraid to strike. He resorted to a series of arguments, suggestions and innuendoes in an attempt — unsuccessfully, in my view — to discredit the case for the limited form of divorce that the Government propose to introduce without, however, taking up a clear position on the issue one way or another. That is an abdication of function, and I wonder where he stands. I am reminded, although I do not intend to go into it because it is probably inappropriate, of a rather biblical reference to that which is not hot and that which is not cold.

Mr. Wilson: Information on John P. Wilson  Zoom on John P. Wilson  Deputy Kelly has quoted that already.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  I intend to concentrate the main brunt of my remarks on points made by Deputy Woods, because his speech was the centre of most of what the Opposition said. Much of what Deputy Woods said has a fairly familiar ring to it, although at times he did not seem all that familiar with it himself. We have heard much of it from various sources outside the House.

I would like to take the opportunity of correcting a misrepresentation by Deputy Woods. He referred to the statement on the Government's intentions with regard to marriage, separation and divorce and alleged that a careful reading of paragraph 14 of that statement did not bear out the claim, as he called it, that a period of five years separation would be required before a divorce could be granted. He went on to say that the only commitment that can be abstracted from the paragraph is to provide a minimum period of two years from the granting of a judicial separation before a dissolution of marriage can take place. I suggest that [1456] Deputy Woods read the paragraph again with care. It states, as clearly as it is possible to state it, that a period of five years' separation will be required before an application for divorce will be entertained. It indicates also that provision will be made to regulate the extent to which a period of separation occurring before the decree of judicial separation should be regarded as satisfying the five year separation period required, but that in no circumstances will a decree of divorce be given within two years of the decree of judicial separation. It is regrettable that Deputy Woods should attempt to misrepresent such a very clear statement by the Government on this matter.

I want to deal with Deputy Woods's comments — they were taken up by a number of others — on the constitutional implications for the first family which would result from the amendment that is being proposed. As I understand it, Deputy Woods's line of argument is the following. First, Articles 41 and 42 give constitutional protection to the family based on marriage. Second, to discharge its pledge to guard with special care the institution of marriage, the State has passed a number of pieces of legislation; the Succession Act, 1965, the Family Law (Maintenance of Spouses and Children) Act, 1976 and others all of which protect the rights of members of the family. Deputy Woods went on to claim that once a marriage is dissolved the partners and their children will cease to be a family based on marriage, and he concludes his argument by saying that in the event of a remarriage the first family not merely lose the constitutional protection of Articles 41 and 42 but that any statutory rights afforded to them are in themselves unconstitutional. I read in this morning's newspapers of the same point reported as having been made by a spokesman for the anti-divorce campaign, claiming that our proposed amendment would remove all existing constitutional protection under Articles 41 and 42 from the first family and transfer it to the second family. That argument breaks down at every point, as I intend to show.

There is no doubt that Articles 41 and [1457] 42 give constitutional protection to the family. This is important because it prevents the State from enacting legislation in conflict with the principles stated in the Articles, and Deputy Woods gave two examples of this. So far as the Articles enjoin the State to act, they are, however, not stated in precise terms. Thus, while it is true that such measures as a wife's right to a share of her husband's estate or her right not to have her home sold without her consent, are in full accordance with the constitutional pledge to guard the institution of marriage, they are primarily rights granted by Statute, in the one case by the terms of the Succession Act, 1965, and in the other by the Family Home Protection Act, 1976. If these Statutes had never been passed it would be difficult to argue that such rights are inherent in Article 41. Conversely, if the Oireachtas were to repeal both of these Statutes in the morning, it would be difficult to argue the case that it is precluded by Article 41 from so doing.

The amendment now proposed will permit the dissolution of marriage, that is to say, the relationship between the spouses. It does not follow that such a dissolution dissolves any of the rights conferred by Articles 41 and 42 on parents vis-á-vis their children or children vis-á-vis their parents. The sole dissolution is that of the relationship between the spouses. For instance, Article 42.1, after acknowledging that the primary and natural educator of the child is the family, goes on to respect the inalienable right and duty of parents to provide for the education of their children.

Parents remain parents after a divorce which cannot in any way diminish their inalienable rights and duties in relation to their children. Notwithstanding the fact that the marriage may be dissolved, the children of a valid marriage continue to have all the rights in relation to their parents deriving from Articles 41 and 42 and the parents retain all the rights and duties in relation to their children arising from the same Articles. The mere fact of the dissolution of the marriage does not alter this. Nobody has ever suggested, for instance, that the dissolution of a marriage [1458] by the death of one party alters the constitutional rights or duties of the remaining party and his or her children, nor that the recognition of a dissolution of marriage under the provisions of Article 41.3.3º as it stands can detract from or alter the constitutional rights or duties of the parties to that marriage in relation to their children.

I also wish to point out that all the statutory rights which children have will continue after dissolution. Children will retain their rights under the Succession Act to succeed to their parents' estates by intestacy and to make application under section 117 of the Succession Act where their parents die testate having failed to make proper provision for them. In this connection, under the Status of Children Bill recently introduced these rights, heretofore confined to legitimate children, will be available to all children regardless of their parents' marital status. They will retain their statutory rights to maintenance.

Dr. Woods: Information on Michael J. Woods  Zoom on Michael J. Woods  Could the Minister supply a copy of his speech?

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  As the Deputy will see from the various pieces of paper in front of me, I am speaking from notes. In some cases they are lengthy and in others rather sketchy. However, I can assure the House that it is my intention, having finished this series of notes 20 minutes ago, to put them together and it will be a pleasure to give a copy to Deputy Woods and to any other member of the Opposition who wishes to have it. Next week, when bringing this Bill before Seanad Éireann, I intend to combine in the Second Stage speech my opening speech in the debate here and the main parts of this speech.

Mr. Haughey: Information on Charles J. Haughey  Zoom on Charles J. Haughey  It would be as well if we had the Minister's arguments before Committee Stage.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  I am in the process of developing those arguments. It is clearly wrong to suggest, as Deputy Woods has, that any of the statutory rights of children [1459] to which I have just referred could be regarded as unconstitutional. As the offspring of married parents and, therefore, members of families based on marriage, such children will, for the reasons I already stated, retain their constitutional rights under Articles 41 and 42 even when the ties between their parents are severed. In addition, children of divorced parents are being given an added constitutional protection under the Government's proposal in that the court is required to be satisfied before granting a dissolution that adequate and proper provision is made for them.

Deputy Woods claims that children of the first marriage would be “hopelessly disadvantaged” because of a remarriage. That is simply not true. They would be in no different a position from that in which they would be if a divorce had never taken place and there were more children of the marriage or of either of the parties to the marriage. It is true, as Deputy Woods stated, that the dissolution of a marriage will deprive the spouses of rights deriving from Article 41 in relation to each other. You cannot be divorced and married to the person in question. It follows that, on a dissolution of marriage, each spouse will lose his or her statutory entitlement rights because these are rights attaching to spouses which include the wife's legal right share and her share on intestacy.

It is a common condition — I mentioned it briefly the other day in opening this debate — in the standard form of separation agreement used by separated persons that they each give up his or her succession rights on the death of the other. This is commonly accepted by people coming to an agreement to live apart. Each spouse obviously must give up rights in certain areas, including custody of and access to the children and, as part of that process, they deal with succession rights in the way I indicated. Furthermore, at present when a decree of judicial separation is given against a spouse, that spouse loses succession rights to the estate of the other. At present that affects only one of the [1460] spouses who, in the context of the present law, might be called the guilty spouse.

I should like to remind the House that the report of the Law Reform Commission on divorce a mensa et thoro and related matters and the report of the Joint Committee on Marriage Breakdown dealt with this question and proposed that a change from the present position was desirable. The Law Reform Commission recommended that one consequence of a decree of judicial separation should be that each spouse would be precluded from taking any share in the estate of the other. The joint committee recommended that the court should have power to vary or discharge a spouse's rights of succession following the granting of a decree of judicial separation. Both sets of recommendations indicate a particular view as to succession rights where a marriage has, for all practical purposes, come to an end.

Of course, that is not to say — far from it — that we should have no sympathy in this connection for a dependent spouse who has been divorced. I intend to come to the question of financial orders which the court will be empowered to make on granting a divorce, but the provisions will be framed so that the courts can take account of loss of expectation, whether it is a question of succession rights or any other expectations, for example, a widow's occupational pension on the death of the other spouse and, where this can be done and it is appropriate to do so, the court will be able to give compensation. That may not be enough, and the Government are prepared to give consideration to any proposals which might be brought forward to do something more in these cases.

Deputy Woods adverted to the implication of the question of succession rights for the farming community. I wonder why he picked them. However, he did and he pointed to the case of a wife who helps to build up a farm and who, on divorce, loses her succession rights. Yet on the evidence of the remarks he made in the House, Deputy Woods is prepared to countenance, rather than full divorce, an extension of divorce a mensa et thoro[1461] which has the exact same consequences for a wife's succession rights. He is prepared to countenance the perpetuation and extension of these problems without suggesting any remedy whatever. The truth is that these problems about succession rights, maintenance, the family home and so on, arise wherever there is a breakdown of marriage. They arise under the present law and would arise, and indeed be exacerbated, under the very tentative suggestions of Deputy Woods for extended nullity and judicial separation.

Deputy Woods seems to confuse divorce which has effect only from the time of the decree with nullity ab initio which decrees that there never was a marriage. Children of a marriage which ended in divorce would, of course, always remain children of that marriage under the Constitution and to say they would become constitutional orphans is absolutely without foundation. I should like to mention the other case that Deputy Woods referred to when he made his tentative suggestions for the extension of nullity.

What happens in the case of nullity? Children of a marriage that has been the subject of a decree of nullity, that is declared void, under our present law are illegitimate. They have rights under Article 40 of the Constitution but do not have any rights under Article 41. They have no right of succession to their father and have a right of succession to their mother only after the legitimate children, if she has legitimate children. I am not being contentious about this and I want to make the point quite sincerely, but I must point out that it is extremely dangerous to suggest, as Deputy Woods did while he was expressing concern for the position of children of marriages that end in divorce, that we would put some children by the route of nullity into an ever more disadvantageous position than they are in at the moment. We do not intend to do that and, in a sense, that is a concern that goes to the heart of the issue we are talking about.

I do not believe—I do not intend to prejudge any discussion we might have [1462] in the House in relation to nullity—that any extension or forcing of the definition of nullity can in any way constitute an alternative to divorce. For anybody who is looking at it in that way I ask them passionately to think again because they are in danger of doing a grave injustice to the people in question.

Dr. Woods: Information on Michael J. Woods  Zoom on Michael J. Woods  The Minister should have a word with his colleague, Deputy Kelly.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  I address my remarks to any Member who may hold that view, and, indeed, to anybody outside the House, in my constituency or out of it, who might be taking that view.

Dr. Woods: Information on Michael J. Woods  Zoom on Michael J. Woods  It is part of the solution.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  It is not part of the solution to make the problem worse. I fully recognise that a problem arises in the areas of succession, maintenance and property. Where marriages break down and parties separate, regardless of whether or not they are entitled to remarry, there is always a problem in trying to maintain two households out of the resources that previously had to support only one. The only ideal solution, of course, is for marriages not to break down but it is not in our compass, unfortunately, to bring about that solution. In the real world the best legal solution is to provide, as the proposed constitutional provision will, that before a divorce is granted the court must be satisfied that adequate and proper provision, having regard to the circumstances, will be made for the dependent spouse and the children.

I should like to refer to Deputy Woods's example of the farmer's wife who has built up the farm and is involved in an application for divorce. What this means in practical terms is that a court, before granting a divorce will have to be satisfied that the provision made for the wife takes into account the fact that she will be losing inheritance rights. Before a court would grant a divorce in such a case, it would clearly require the payment of a substantial lump sum sufficient to compensate for the loss in addition to [1463] whatever maintenance payments would be required. We are not speaking of the ideal world because it is not in our compass to bring about the ideal solution which is that no marriage would ever break down. Unfortunately, that is not the world we inhabit.

A similar point can be made in relation to the other statutory benefits that a wife would lose on divorce. In relation to each of these she would be entitled to a different but equally valuable right. She will lose her right to maintenance as a spouse but instead will be entitled to alimony as a divorced wife. If she loses the benefit of a dwellinghouse the court will require the payment of a sufficient sum to compensate. Alternatively the courts may require, having regard to her circumstances and those of the children, that the house be transferred to her as part of the adequate and proper provision referred to in the constitutional amendment. She will have those rights not merely as statutory rights but as of constitutional right. The suggestion of Deputy Woods that these rights could in some way be over-ridden by the rights of the second family is without foundation.

I should like to say something about the family home, a matter that was referred to by a number of speakers who suggested that divorce would destroy important rights to the family home and that in some way the second family might have some prior claim to the family home in preference to the first family. The question of the family home will probably be one of the most important questions which, in a normal case, will fall to be settled by the court when faced with an application for a judicial separation, a stage before divorce, or where they apply for a separation agreement to be made a rule of court. In that way the question of the ownership and of rights in the family home will have been settled in most cases at the stage where the judicial separation is sought or where an agreement is brought before the court. Where justice requires it and where provision cannot adequately be made otherwise, the family home can be given to the wife who [1464] needs it. We have provided both the right and the duty for the court to examine that question by making the provision included in the draft amendment to the Constitution.

I should like to remind the House that legislation is being prepared in my Department to provide equal rights for both spouses in the ownership of the family home. That is a concrete example of the Government's commitment to protect the family as far as that can be done. That legislation will not only immeasurably strengthen the position of the dependent spouse where the two spouses are living hapily together, but will place that person in a much stronger position if the spouses unfortunately find themselves in the position of having to come to an arrangement to live apart.

Deputy Woods claimed that provisions for protection for dependent spouses and children in other countries have been found to be — I think he used this word —platitudinous and he seemed to suggest that no such protection exists in the amendment. I wonder if Deputy Woods, or his ghost writer, thought what it was they were saying when making that point.

Mr. Wilson: Information on John P. Wilson  Zoom on John P. Wilson  I though this debate was to be without rancour. The Minister is a nasty man.

Dr. Woods: Information on Michael J. Woods  Zoom on Michael J. Woods  We have had enough slurs from the Minister.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  I am putting this question very seriously. Is it being suggested that judges sworn to uphold the Constitution will not take those provisions seriously? I must point out that the draft amendment contained in the Bill will impose an obligation on the court to be satisfied that adequate and proper provision, having regard to the circumstances, is made for dependent spouses and for any dependent children before a divorce will be granted.

We are also considering legislation that will deal with the question of enforcing maintenance orders, taking account of the possibility of spouses absconding to other countries to evade their responsibilities. [1465] Deputy Woods touched on this question and called for early legislation to enable us to ratify the EC Convention on jurisdiction and enforcement of judgments in civil and commercial matters. I should like to inform the House that legislation to give effect to that Convention is in the final stages of drafting and I hope to be in a position to introduce it very shortly. The Deputy may not be aware that, since 1974, we have had reciprocal arrangements with the United Kingdom providing for the reciprocal enforcement of maintenance orders between the two jurisdictions.

Mr. Lenihan: Information on Brian Lenihan Snr.  Zoom on Brian Lenihan Snr.  How will they be enforced?

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  I should like to refer to two further points from Deputy Woods's speech. He said he was concerned with children by a second marriage of unemployed persons. Deputy Power had some remarks to make about these alleged costs also. Surely it is not suggested that the State's responsibility in relation to the dependants of the unemployed should be conditional on the marital status of their parents?

Mr. Wilson: Information on John P. Wilson  Zoom on John P. Wilson  They are not being lived up to at present.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  If it is suggested, that is a suggestion I reject. Deputy Woods was [1466] concerned, as indeed were Deputy Power and others, with the cost of maintaining deserted wives who obtain divorces. If they do not obtain a divorce — as it appears they would not be able if Deputy Woods were given free rein — they would continue to be deserted wives and entitled to payment. Therefore, I cannot see how any extra cost arises under that heading from the proposals before us. The same logic applies to a number of other areas.

An Ceann Comhairle: Information on Thomas J. Fitzpatrick  Zoom on Thomas J. Fitzpatrick  The Minister's time is up.

Mr. Dukes: Information on Alan M. Dukes  Zoom on Alan M. Dukes  I will sit down, a Cheann Comhairle, and obey your stricture. Like other Members of the House, I have been a little constrained; but, on Committee Stage, we will be afforded an opportunity of going into more detail on some of the further points I wish to raise.

Cuireadh agus aontaíodh an cheist.

Question put and agreed to.

Ordaíodh Céim an Choiste don Mháirt, 20 Bealtaine, 1986.

Committee Stage ordered for Tuesday, 20 May 1986.

The Dáil adjourned at 4.05 p.m. until 2.30 p.m. on Tuesday, 20 May 1986.


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