An Bille um an Deichiú Leasú ar an mBunreacht, 1986: An Coiste (Atógáil) agus na Céimeanna Deiridh. Tenth Amendment of the Constitution Bill, 1986: Committee Stage (Resumed) and Final Stages.
Wednesday, 21 May 1986
Dáil Eireann Debate
Mr. D. Andrews: Before Private Members' time I had made a number of points. I will not take up the time of the House for much longer because I took more than one hour on Second Stage. During my short contribution this evening I asked if we appreciated while discussing this very important matter that we are members of a parliamentary assembly or if we had confused this place with an assembly of some church or other. I was horrified at the tone and tenor of some of the speeches. Of course, I am entitled to be horrified and surprised, though the people making the speeches are entitled to make them in the manner they see fit.
I pointed out that I thought the Government could make a serious mistake in campaigning on the issue and I suggested that perhaps the Taoiseach  could address the nation on the airwaves and that the Government could circulate each household with literature setting out the pros and cons of the issue. I mentioned that if a caller came to my door I would treat him or her courteously but that I would move that person on because I considered this was a moral issue and that it was entirely a matter for myself to make up my own mind on the matter without any political input. I pointed out I considered it a matter for my own family to make up their own minds — a number of them have and they may not be entirely of the same mind as myself which is as it should be. My message to canvassers is not to call to my door. However, if they should call by mistake they will be treated with courtesy but my response to them will be this is not a matter of politics but is one of private morality.
I dealt also with the position of Fianna Fáil and I pointed out that the vast majority of members were against divorce and were entitled to take that view. They had the courage to outline their position and they pointed out they were expressing views on their own account and were not speaking on behalf of Fianna Fáil.
During the day I met a number of respected journalists. They approached me because they considered Fianna Fáil had changed their position in relation to the statement issued by the parliamentary party some time ago. Nothing could be further from the truth. Fianna Fáil have not changed their position. I welcomed the statement by the parliamentary party because it was a new departure and it was a trend I hoped would continue on matters of private morality. In this instance the Whip did not apply and individuals in the parliamentary party were entitled to do their own thing. I welcomed that development and I continue to welcome it.
The Leader of my party has expressed his worries and concern about the referendum and effectively he has come out against divorce. Our spokesman on Justice, my friend and colleague Deputy Woods, has also indicated his reaction to the proposed referendum, as have Deputy O'Hanlon and Deputy Flynn and  one of the most respected Deputies in the House, Deputy Faulkner. All of these men have indicated their views as they are entitled to do. That is what this Parliament is about. I do not believe it is other than a republican Parliament and we, as republican parliamentarians, represent the people of all religions. We are not, as one speech appeared to suggest, legislating as Catholics for a Catholic people, that is not what we are about. I listen to the views of my colleagues which are different from my views but that is democracy.
There has been much legal chat about the position of the first family in a broken marriage as compared with the legal status of the family of the second marriage. I wonder if those who have deliberated long and hard about this matter have concerned themselves with the hardship, tension and psychological trauma which afflict such families. Perhaps the husband beats his wife or abuses the children and in the circumstances of such a family where one of the partners seek a divorce it is my view that the marriage has irretrievably broken down. My appeal is for charity and compassion. I have expressed my view that the God who is common to all religions here is a compassionate, loving and forgiving God and will not condemn the former partners in a broken marriage to eternal damnation. As a practising Catholic I do not think these people will burn in hell. As a legislator or individual, I do not think I am entitled to suggest that another religion should not have its own rules, regulations and beliefs. I am not entitled to suppress, subdue or subsume those religions simply because they do not coincide with my religious beliefs. I cannot see my role as a legislator in that direction. If people who have spoken in the debate do not share my view I do not think the less of them, but I should not like them to think less of me because of the views I hold.
I see the family as fundamental to the fabric of society. That is the way I want it in our society. I want the family unit to be strong and close-knit and to be  prepared to defend itself against outside threat. I believe very strongly in the goodness of the family and its importance to the general well-being of society. However, where the family unit breaks down, are we to say to the partners that they cannot enter into another relationship because the rules of my Church or their Church so dictate? We cannot do that as legislators.
I do not see the referendum as an attack on the family. The vast majority of families are strong and can defend themselves. As I have pointed out ad nauseam, divorce will not be compulsory. Let those who want that facility have it in the circumstances of this restrictive amendment but it will not interfere with those who do not want divorce. I do not stand for the dissolution of marriage but, where a marriage has dissolved as a matter of fact and reality, who am I to say the partners should not be entitled to remarry? It is cruel, almost inhuman, to consign people in a broken marriage to a continuation of that until death. That is wrong. I am not setting myself up as a judge of morality. That is not my function. I am here as a legislator to legislate for the common public good and of the nation.
Of course divorce is a contentious issue. No one denies that. Income tax is a contentious issue. Are we to avoid dealing with the issue simply because it is contentious? I do not see these proposals as being extra liberal. They are restrictive enough. I do not see the proposed referendum as a threat or challenge to anyone or anything.
I support Fianna Fáil on taking a neutral position. I know that some of the speeches may seem less than neutral from the Fianna Fáil side of the House, but this is their opportunity to say what they have to say and then to stand back and let the people decide. It is right that people should indicate their views but to suggest that in some way by expressing those views the neutral stance of Fianna Fáil has been eroded is wrong. If needs be I will keep pointing that out.
I thank the spokesman on Justice for the manner in which he met what he  considered to be his duty. Some of the criticism levelled at him was unfair. One of my weaknesses in public life is that I can see the other person's point of view. There is a view in some political parties that one can only have tunnel vision and cannot agree with one's opponent on the other side of the political divide. That makes a nonsense of the politics in which I believe. It may be part of my simplicity but I can see Deputy Woods' points. While I may not be able to support them, I defend his right to speak as he wishes. We might have a look at the contributions of those who criticise him. People come into the House on a hit and run basis. They make their contribution arising from the contribution they heard immediately before them. In this instance the attack on Deputy Woods was made by some Deputy who heard his speech, dined out on it and then skipped. That is not fair debate or fair criticism. I applaud his right to say what he said although I may not agree with it.
I assure the public that as far as I am concerned this will be my last word on this issue on the principle that I believe politicians should stand aside from the issue and let the people decide. I would add a smaller rider to that: if my position is misrepresented I reserve the right to place on record my correct role in this discussion.
Mr. Barrett: (Dublin North-West): I will be brief. It is in connection with what Deputy Andrews said. He made reference to the fact that two previous speakers may have had authorisation from the Church or some bishop to express the views of the Church. I was one of the people he referred to. I had no authorisation from anyone. As a Catholic I was expressing——
Mr. Shatter: Deputy Andrews made an eloquent contribution to this debate and tried to ensure that we deal in a realistic and responsible way with what is recognised by everyone as a difficult issue. In the last few days he has been ploughing a very lonely furrow in the benches opposite in insisting that a neutral approach is adopted. Anyone standing aside from the debate would expect a neutral presentation of the different views to be evenly balanced. On each occasion when the Deputy entered the debate it has been to bring the Members opposite back to the reality of the problem that exists. It is noteworthy that his views do not coincide with the views of his colleagues.
I found Deputy Barrett's contribution, with all due respects to him, most disturbing especially when it is considered that he is a member of a party who seek to adopt the tenets of Wolfe Tone and seek to project themselves as a party who wish to have a United Ireland in which the position of majorities and minorities of all types are protected. His contribution  could not be reconciled with a perception of what is necessary to resolve some of our difficulties in the Ireland of today.
Mr. Shatter: He has a right to express his views just as every other Deputy has and to tease out what is being said. The impact of Deputy Barrett's contribution was that the laws of the State should reflect the laws of one Church which is something that was not articulated to the same degree by other Members of the House opposite. It was quite different from the contribution made by Deputy Andrews.
I wish to deal with some of the issues raised by Deputy Woods. There is a real difficulty that, in teasing out the constitutional proposal, we will create unnecessary alarm by suggesting legal interpretations which are untenable. The difficulty is that, if someone asserts something for long enough, someone will believe it is accurate. Those who know that it is not accurate can only assert a different proposition. The people then have to judge which person is to be believed.
I wish to deal with the issue which has been raised time and again about the first family and the second family and which one has constitutional protection. The suggestion has been made — and adequately dealt with by the Minister for Justice — that children of the first marriage will lose their succession rights if divorce legislation is enacted. All that can be replied to that is that it is untrue. It is a totally inaccurate legal proposition because, under section 117 of the Succession Act, children born to a couple in marriage will remain the children of that couple whether or not the marriage is dissolved and will continue to retain the right to make a claim under section 117 of the Succession Act to a share in the  estate of the deceased parent whether or not the marriage is dissolved. The fact that this is an untrue proposition is evidenced by the fact that currently — and I think I pointed this out on Second Stage — we have couples who get foreign decrees of divorce and such decrees of divorce are recognised within this jurisdiction by our courts.
The second point raised which I think we need to pin down to a considerable degree relates to the constitutional position of the family. The proposition that the family of the first marriage, which marriage has collapsed, would be placed in a legally inferior position is based on a perception that when the marriage collapses there are in existence constitutional rights which help the couple, the husband and the wife individually, and provide them with some degree of constitutional protection in the context of the broken marriage. To that it can be replied that I have never seen a situation, in almost 15 years working with people whose marriages have collapsed, where a battered or a deserted wife has sought legal help arising from the collapse of their marriage and in which I have been able to sit that person down and say: “Do not worry. You have all of these  constitutional protections that you can avail of, even if your marriage has collapsed, that will ameliorate the position.”
The reality is that there are no constitutional protections in that sense that afford a hap'orth of assistance to either the deserted husband or the battered wife when their marriage has collapsed because the protections they have in substance are statutory protections provided within ordinary legislation. One cannot, by constitutional rhetoric, repair the broken marriage. One cannot, by virtue of the Constitution, guarantee protection for the battered wife. One cannot, by virtue of the Constitution, guarantee to her adequate income support through maintanance and one cannot, through the Constitution itself, provide her with protection in the family home.
The fact that the Constitution did not extend any of these protections in a substantive from was evidenced by the fact that until the Family Law (Maintenance of Spouses and Children) Act, 1976, was enacted dependent spouses or dependent wives had no general course of action available to them to obtain maintanance support from husbands who were refusing to maintain them properly. Prior to the enactment of the Family Home Protection Act, 1976, a wife living in a home owned by her husband could discover it was sold when the removal van appeared outside her home to take out the furniture. There was no constitutional protection; it was a statutory provision which provided her with protection.
Prior to the provision of legislation in 1976 and then in an amended form provided in new legislation enacted in 1981, wives subject to the violence of their husbands could not obtain barring orders to put a violent husband outside of the House. They are not a form of constitutional protection; they arise by ordinary legislation. So the reality is that the Constitution, despite the prohibition on divorce, has never provided any constitutional protections or adequate mechanisms to assist the casualties of a broken marriage in resolving the consequences of the breakdown of their marriage. That  has always been left to ordinary statutory provisions enacted through the Oireachtas and, indeed, the two major pieces of legislation in this area which provide protection for wives were enacted by the Coalition Government then in existence in 1976.
So, when one takes a broken marriage and talks about these mystical constitutional rights that are providing everyone with protection, they do not and cannot provide a mechanism to repair broken marriages. They do not provide currently any guarantees of financial support or proprietary protection in the family home. The one thing the current Constitution does is deny to the victim of a broken marriage the right to enter into a new marriage, the opportunity of a successful and happy family life in a second marriage.
That constitutional provision which is frequently suggested in some way to prevent marital breakdown clearly has no such impact because of the statistics of marital breakdown to which I referred in the Second Stage debate where I referred to the fact that there had been over 15,000 applications in the District Court alone in a six year period by wives seeking barring orders. So there are no mystical constitutional protections available.
What happens in this context if this provision is enacted and is inserted in the Constitution? For the first time in the context of the latter wording of this proposal there will be a constitutional requirement to ensure, in so far as one can in the context of the circumstances of the couple, that adequate and proper provision is made to provide financial supports or protections for the dependent spouse and children.
Mr. Shatter: The point I am making is that the suggestion that permitting divorce and remarriage will deprive the victims or parties currently to a broken marriage of substantive constitutional rights which are of assistance to them is untrue because currently those sort of rights do not exist within the Constitution, and currently they do not exist to take into account the divorce situation in the context of a spouse living in Ireland where a foreign decree of divorce is granted which is recognised in Ireland. Currently there are no constitutional protections there either.
I want to deal with this issue, to finally pin down what it is that Deputy Woods is talking about when he talks about all these constitutional rights being lost in the marital breakdown situation if we permit the casualties of a broken marriage, the deserted husband or battered wife, to remarry. The constitutional rights that the courts have articulated as applicable to the family relate to the family as a unit; they relate to a functioning viable family unit composed of husband and wife or husband and wife and children living together in a viable marriage relationship.
Constitutional rights have been referred to, such as those arising out of the Murphy case which related to income tax, ensuring that the couple living as a unit were not discriminated against in law as compared with a couple cohabiting. Under the current Constitution in the absence of divorce our courts have recognised that where a marriage breaks down the couple, vis-á-vis their relationship with each other, can no longer refer to constitutional rights which apply to the unit of the family because at that stage the family unit has broken up. That concept is meaningless in the concept of the  relationship between the husband and the wife. That is something which needs to be clarified. For people who are unfamiliar with the law and with the Constitution, the general proposition could create alarm if they believed they would lose their constitutional rights. If the decree of divorce is granted, the individuals will retain all the constitutional rights they have individually under the Constitution. Even without a decree of divorce our courts have recognised that the family rights which apply to the family unit are changed drastically not by the granting of a divorce decree but because the marriage has broken down.
I am going to refer very briefly to three court judgments which substantiate the point I am making. Deputy Woods is familiar with one of these judgments because he referred to it in the debate on the Irish Nationality and Citizenship Bill. The case the State (Bouzagou) v. Fitzgibbon Street Garda Station can be found in the 1986 Irish Law Reports Monthly, page 98. The High Court Judge dealt with the issue of family rights. There was an assertion on the part of the husband — who was the prosecutor in a case brought against the State — that he was entitled to certain rights as part of a family unit despite the fact that his marriage had broken down. According to the judgment this gentleman had been violent and had been barred from the family home by court proceedings brought by the wife. The court dealt with whether Mr. Bouzagou who had left Ireland — he was not an Irish national — had any rights under Article 41 of the Constitution. I emphasise that this is a case where the couple's marriage had broken down. It is still indissoluble under our Constitution and there is no suggestion of anybody obtaining a divorce. The wife and children are living in Ireland and she is separated from her husband. This situation applies to many thousands of people at present. What are the constitutional rights in this situation? How will they change if we have divorce? Mr. Justice Barron in the High Court, dealing with the proposition the husband made said:
The prosecutor's problem, however,  is that he cannot automatically claim the rights guaranteed to the family under Article 41, because, in this case, unfortunately the family is divided. It is not a question of asserting the rights of a family, or even of the parents, as against the outside world but of reconciling the rights of individual members of the family when the family itself is divided. The wife and the children now live as a separate unit and, when the prosecutor was last in the country, had the protection of a barring order against him. In these circumstances it appears to me that, in the absence of agreement between husband and wife, the task of reconciling the rights of the prosecutor with those of other members of his family is one for the courts.
In other words, the court recognised that the mystical group of rights, which Deputy Woods is suggesting would be lost to the first family if divorce is introduced, are changed radically, not by the introduction or the provision of divorce but by the fact that a marriage breaks down. This means the family ceases to function as a unit. We have a spouse with children on the one hand and the other spouse on the other hand, each of whom has rights which must be balanced. That will remain the position with or without divorce. That is not a judgment from a judge dealing with an issue for the first time because similar judicial statements have been made in a number of cases by other members of the Judiciary where marriages have broken down but in which there was no question of the divorce. In the case of Dennehy v. the Minister for Social Welfare, July 1984——
Mr. Shatter: A legal proposition has been asserted by Members on the other side of the House and by the people outside this House that there will be a serious infringement of the constitutional rights  of the first family if divorce is introduced. That is a patently inaccurate, unsubstantiated proposition——
Mr. Shatter: That is an example of the type of contribution some Deputies opposite have made. I would not include Deputy Woods or Deputy Flynn in that because we got to know each other very well on the Joint Committee on Marriage Breakdown. That is an eloquent example of the seriousness with which some Members opposite take this issue, and it is a very sad example.
Propositions which are being asserted as a legal fact are creating alarm outside this House. These propositions cannot be substantiated, and have already been refuted by our courts and there is an obligation on Members to set the record straight. The fact that I am doing that shows I am touching a nerve so far as the people who are making these inaccurate legal propositions are concerned.
To look at the technicality of the law can be a very boring exercise on occasion. It is much simpler to grab the headlines with a tight phrase and a quotable quote but, if one looks at the reality behind these phrases, one will find that not only are they inaccurate but they have no substance and have already been refuted.
Dealing with the issue of whether a family's constitutional rights remain exactly the same following a marriage breakdown, in Dennehy v. the Ministerfor Social Welfare, page 5 of the judgment, Judge Barron said:
Articles 41 and 42 relate to the family. They preclude legislation which is an attack on the family either as a natural primary and fundamental unit group of society or as the primary and natural educator of the child.
The failure to provide benefit to a deserted husband is not per se an attack on the family, since the family has already been broken up by the desertion of the wife. It cannot be suggested that to make provision for the husband in such circumstances would in any way cause the parties to come together again.
That is another example of the courts acknowledging that where a marriage breaks up with or without divorce the fact that the family unit is broken up changes the constitutional position of a couple and that, whether you have divorce or not, both the law and the Constitution must balance the individual rights of both husband and wife vis-á-vis each other. That cannot be affected by the enactment of divorce legislation. I do not want to labour the point but I refer to just one more judgment where that issue was dealt with by our courts, something that Deputy Woods and others have made great play of. I refer to the case of Kent County Council v. CS. Judgment was delivered on 9 June 1983 and is reported in Irish Law Reports Monthly. I have not got the reference here. In that judgment, dealing again with a family that had broken up, the then President of the High Court, now Chief Justice Thomas Finlay, said:
Taken in its broadest and most usual sense the family of which the Infant is a member has broken up and it is not possible any longer for the courts of this country or indeed for the courts of England to provide a unified right to  the family to educate and bring up this child as a close or united family unit.
I introduce this at this stage to make the point that when a marriage breaks up our courts recognise currently that under the Constitution that affects the family unit to the extent that instead of having a unit whose rights to protection are provided for, the law and the Constitution must provide a balance in the rights between the individual component parts of that family unit, be it husband or wife, and that the real protections currently available to the dependent spouse are those that arise under Statute. The presence or absence of divorce will not affect that. The enactment of this divorce provision in the context of the constitutional proviso which requires that adequate and proper protection in the financial and property areas be provided will mean a greater degree of constitutional protection than exists at the moment.
A myth has been created. The Frankensteinian monster that was released from the box last week to stalk the land is stalking the land on the basis of a legal theory that cannot be substantiated and can do nothing other than create worry or alarm and is — I will not say mischievously created — misconceived. I do not know whether it was accidental or a deliberate attempt to create worry in an area where it is not necessary.
I want in dealing with this issue to refer to something I find difficult to understand. One of the general propositions made by Deputies opposite in dealing with the issue of divorce has been what I have just referred to, the possible loss of constitutional rights of the first family. I have explained that there will be no loss that does not occur currently without divorce but that the dependent spouse and the children might have their constitutional position copperfastened to a degree that it is not currently copperfastened. I assume that Deputy Woods is anxious to ensure that the dependent spouse and the children retain their rights and get adequate support but that cannot  be reconciled with a portion of the contribution made by Deputy Woods last week. He said in this House that one way that many of the problems of marital breakdown — he listed various ways — could be dealt with was by the enactment of nullity legislation. Whereas there is no doubt that the individual constitutional rights that husbands and wives would normally have would be retained by them in the context of divorce legislation and that the children of a marriage where divorce is granted will remain children of the family based on marriage and retain all of their constitutional rights, it is certain that if nullity was used as a mechanism instead of divorce, the constitutional rights under the family Articles of not only the husband and the wife but of the children born to them would be extinguished because those children would no longer be regarded as children of a family based on marriage. The theory and practice of nullity law is that a decree of annulment is the decision of a court that no marriage ever came into existence. I find it extraordinarily difficult to reconcile the concern expressed that the members of the first family retain constitutional rights with the proposition that instead of providing for divorce we should provide nullity legislation when nullity legislation would patently extinguish the constitutional rights of the husband, the wife and the children under Articles 41 and 42 of the Constitution. The two propositions are irreconcilable and cannot withstand analysis or examination.
The approach that has been adopted by some Members opposite and adopted yesterday evening in a speech not delivered in this House but released to the press by Deputy Haughey was based on Deputy Woods' perception that the family is important, is a great buttress in society, the fundamental unit group within our society. Of course it is. Nobody in this House takes a different view. The suggestion is that those who are in favour of this reform in some ways see it as a means of undermining the family or wish to undermine the family. The reality is that we all wish to see the  family functioning and we all regard the family — to use Deputy Haughey's words — as a great buttress. But, in what way is the family a buttress when the husband and wife are living apart and the wife has had to get a court order for protection against her husband or when the husband has been deserted by the wife who has gone to live with someone else? How is that family a buttress to society? How does society benefit by telling that couple, whose marriage has collapsed, that we are going to pretend that they are still married to each other by saying that in law they are regarded as married when in reality we know they are not? The press release indicated that a price was to be paid for the introduction of divorce. A great price is being paid currently by this community for our not having faced up to this issue. How many thousands of husbands and wives currently find their constitutional position intolerable? The law's denial to them of a second chance is seen by them as a harsh and cruel way to deal with someone whose marriage has collapsed. In what way is the family being enhanced or marriage buttressed by the fact that people are getting church annulments and going through second marriages in churches and these second ceremonies are not recognised as valid or as creating valid marriages?
In what way is family life enhanced or buttressed by the fact that couples whose marriages have collapsed are trying to arrange divorces of convenience in England, Mexico, Haiti or the Dominican Republic and going through second invalid marriage ceremonies before returning to Ireland? In what way are marriages enhanced by the fact that a wife who has been deserted by her husband may, six or seven years later, from a permanent, viable relationship with someone else and give a degree of social acceptability to that relationship by changing her name by deed poll to assume the name of the man with whom she is living so that people around her believe that she is married?
In what way is family life enhanced by all these things which the Joint Committee  on Marriage Breakdown acknowledged are part and parcel of Irish society? The price is now too high to do anything other than to permit couples whose marriages have collapsed the opportunity of a second happy marriage. We are paying a very high price, one which many people in the medical profession see where patients, under the strain of broken marriages, are under regular medication, some of them receiving psychiatric treatment and others resorting to drink. The problem of alcoholism was referred to earlier but it is not always the cause of a broken marriage. It is often a form of escape to get away from a broken marriage.
I hope some of the inaccurate propositions which are giving rise to concern outside the House and which Members opposite have been pursuing on a regular basis throughout the course of the debate, can be left aside.
Mr. Cowen: I should like to go into detail on some points which I raised on Second Stage as I am still puzzled regarding some of them, especially as to how divorce legislation will operate in the event of the referendum being passed.
Perhaps the Minister would clarify the special provisions which will be made for those couples whose marriages have failed for more than five years on the passing of the constitutional amendment, if that is the case. The amendment sets out the conditions on which a divorce can be obtained and the Minister said on Second Stage that all conditions must be fulfilled before a divorce decree is obtained. Paragraph 15 of the statement of the Government's intentions with regard to marriage, separation and divorce says:
The legislation will contain special provision to cater for cases where, at the passing of the legislation, spouses have been separated for long periods but may not have obtained decrees of judicial separation or had separation agreements made a rule of court.
People who have already been separated for five years at the time the legislation to provide for divorce comes into force will be able to apply for a divorce once they have proved that fact and also that proper provision has been made for dependants.
Because of the fact that there is a special paragraph in the statement, could the Minister clarify the position in regard to any divorce legislation which may be brought before this House and if special provisions will form part of that Bill in respect of those who have already been separated for five years? If that is the case, then on the basis of his Second Stage speech, if they can prove at the divorce proceedings that they have been separated for five years and that there is adequate provision for the spouse and children, then they will obtain a divorce decree. That seems to suggest that the special provision which is to be made for these people will allow them to obtain a divorce.
Seemingly, the fact that they have been separated for five years will be conclusive evidence that their marriage has failed. Therefore, separation becomes the determining factor in respect of that category. At any rate, that is my interpretation of the position as outlined by the Minister because he specifically pointed out that this is a special provision in relation to these people. By making special provision for a category of people, the court will have no option but to decide in respect of new cases coming before it which are outside that category at the time of the enactment of the legislation, that the fact of separation for five years will be the determining factor in deciding that a marriage has failed. The objective test generally will be whether the couple have been separated for five years and which will determine whether a marriage has failed. If that is not the case, perhaps the Minister will explain paragraph 15 and his remarks which I quoted earlier because it is misleading and it is very difficult for Members on all sides of the  House to make arguments which are considered valid by the Minister if he is not prepared to explain how this special provision for that category of people will come about.
The second point revolves around the spouse's rights in this matter if the referendum is passed. The Minister said, with regard to spouses, that it will of course be a consequence of divorce that the person who has ceased to be married to another, by reason of the dissolution of the marriage, would not be regarded as a widow or widower of the other for the purposes of succession when the other dies and would lose rights as a result. He went on to say the new powers being provided in the family court will enable the court to make some compensation for loss of expectation on the death of the other spouse if that is appropriate.
I accept that once a divorce comes into being there must be a clean break. We should say openly and honestly that, as a consequence of divorce, the rights of the children by the first marriage are diluted. That must be accepted in the event of there being a second union and children born to it. As I pointed out on Second Stage in regard to intestacy, one third of the estate which is available to those children will be available equally to the children of the second and subsequent unions.
In regard to the spouses the Minister said on Second Stage that as a consequence of divorce he or she would lose rights. The new powers to be given to the family courts to award lump sum payments at the time of the divorce proceedings will be some compensation for loss of expectation but the circumstances will vary considerably in each case. They will vary from the person with a £100,000 house in Foxrock to the person living in county council rented accommodation in some other part of the country. Let us take the case of a person who has been happily married for 20 years, with children of that marriage but who then divorces and forms a second union. It is accepted that the widow's pension rights will go to the second wife, the dependent wife at the time. I am sure all Members  will accept that there is an injustice in that case.
I bow to Deputy Shatter's statement in relation to the change that courts accept takes place in the event of a marital breakdown under present constitutional arrangements but the system that operates in Germany in relation to divorce proceedings is a way around that. In that country evidence has to be given at the time of the divorce of an appointment of the pension rights of the person seeking the divorce being granted to the first spouse. That should be the case in regard to people with private pension rights. Justice demands that our legislation should incorporate such a provision. In regard to PAYE workers who do not have private pension rights, the contributory pension goes to the second spouse and the first spouse will be means tested for social assistance. We will have to deal with that point in any legislation to be introduced by the Government in the event of the referendum being passed. The justice of the case demands that. If the people are being asked to accept the justice of the case of those whose marriages have broken down then the Legislature will have to accept the justice of the cases that will arise following that.
As Deputy Kelly said, the passage of this referendum will cause as many problems as it will remedy. The first spouse as a result of divorce may lose her succession rights. At the divorce proceedings alimony payments may be granted to her and, in the event of a change in circumstances for the better of the other partner, presumably she will be able to return to the court, as in other jurisdictions, and have that alimony increased. However, it is important that the pension rights issue is dealt with. The people should be made aware of that before they vote on the amendment.
When dealing with the cost of divorce today the Minister was a little dismisive. It is not popular for legislators or individuals to raise that issue and one is often told that this is a civil right. It is suggested that we should take into consideration the difficulties experienced by many people and there is validity in that, but the Minister  does not seem to be aware that the normal run of the mill case will not involve a person who is economically independent and can provide adequately for his first spouse and children and for a second spouse and children. The vast majority of people here cannot provide for the wife and children they have, let alone for a future wife or children. In the event of the person who is being granted a divorce not being in a position to provide for his wife and children, the State must step in. If that does not happen we will have divorce for the rich. If divorce is to be for all socio-economic classes the State will have to step in. It will not be a question of providing an extra welfare allowance for the spouse taking care of the children.
Mr. Cowen: We will have to provide a council house for the person who has to leave the family home. That is not being done in some cases at present. Where there is a separation at present one party to the marriage returns to his or her family. In the event of a second liaison being in existence at the time of the divorce application proper accommodation will have to be provided. I am not making that a central point as to why divorce should or should not be granted or why people should vote “yes” or “no”, but it must be taken into consideration.
When divorce proceedings are instituted and the new family court decides on who should get the family home, what happens if the family home is held in joint tenancy? Will the court have the power to direct one of the joint owners to transfer the interest in that house to the party who will be remaining there? Can that be done under the Constitution which guarantees property rights? If a person does not wish to transfer the joint ownership what will happen to the family home? The Minister should clarify that point because in most cases the family home is in the name of the husband and the wife.
 In relation to the question of nullity, I was quite amused at the contributions in relation to the final paragraph of the Government's statement proposing that the law of nullity will be reviewed, taking account of the recommendations contained in the Law Reform Commission's report on marriage and the recommendations made by the Oireachtas Joint Committee on Marriage Breakdown. They talk about expanding the grounds on which civil nullity can be obtained.
The Minister for Health on Second Stage spoke about the importance of dividing Church and State and went on to criticise the Church's version of nullity as theological hypocrisy. The Minister for Justice, Deputy Dukes, said that he found it difficult to see the logic behind extending civil nullity and he found it difficult to grasp its function. Deputy Shatter spoke of what would happen if civil nullity were expanded and said that constitutional rights would be available neither to spouses nor to children of that marriage. Could we please have a clear statement from the Government as to whether this is a sop of some description in paragraph 21 or whether they will reform the law on civil nullity?
We are being asked, on the one hand, to bring the Constitution up to date, taking cognisance of the fact that there are marriage breakdowns and that we should therefore provide the right to remarry. We are asked to bring some sort of legal consistency into the law in relation to divorce. On the one hand we are told that church nullities are more liberal than civil nullities available in the courts of this land at present. On the other hand, we are being told by certain prominent members of the Government that there is not much point in following this trend but that they will do it anyway; that that would bring some legal consistency into the lives of people who have obtained church nullities which are not recognised in law. These people may wish to avail of civil nullity so that they can be remarried in the eyes of the State. We need some clarification on that point. The Government seem a little dismissive of  the proposed reforms in that area while making sure that we see the point about bringing legal consistency into the law in relation to divorce, as they see it. Perhaps the Minister might reply to those points.
Mr. Enright: This Bill which has been before the House last week and this week is of tremendous importance and the Schedule we are discussing tonight contains the main elements of the Bill. As we know, the family is the natural, primary and fundamental unit of our society. Its authority is contained in Article 41.1 of our Constitution, which I fully support and endorse. This Article is important because of the obligation on the State to protect the family. We in this House must continue to strengthen the family unit and the concept of the family. If we fail to do so, Irish society will suffer as a result. I am justifiably proud of our society and our family unit. I am totally supportive of and committed to the protection of the family unit. I am anxious that the institution of marriage on which the family unit is built should be maintained and preserved.
In the case of marriage in the Catholic Church, of which I am proud to be a member, the couple marrying enter into a contract for life. Marriage is a lifelong union and is indissoluble. Let it be clearly understood that no State, Government or civil power on the earth have the power to dissolve or break that Church marriage according to the teaching of my Church. I accept unequivocally and without reservation the teachings of my Church in this instance. I am anxious that marriage in Ireland would be maintained and strengthened. Other people may have views different from mine on this matter and may have views different from my Church's. Have I the right to impose my views or my Church's views on what I consider to be a minority in this country? Have I the right to deprive that minority of a civil freedom? That would be wrong, unless it is clear it is for the common good. In Church marriages — and I mean “Church” in the broader sense — in most of the western world there are two separate  and distinct marriages. Where a marriage takes place in a Church in Ireland there are two separate and distinct agreements entered into. One is the ceremony which takes place at the altar and which bestows the sacrament of marriage on the couple, confirming that they are husband and wife according to the law of their church. The second agreement is a civil contract, a State marriage where the man and woman sign a marriage contract and are recognised as husband and wife according to the law of this land as enacted by this House. In Ireland the civil contract is usually signed in the sacristy or in some room off the Church.
This amendment to the Constitution will not affect the sacrament of matrimony of the Church marriage. I now quote an extract from the submission of the Irish Catholic Bishops to the New Ireland Forum on 9 February 1984, given by Bishop Cahal Daly:
The Catholic Church of Ireland totally rejects the concept of a confessional state. We have not sought and we do not seek a Catholic State for a Catholic people. We believe that the alliance of Church and State is harmful for the Church and harmful for the State. We rejoiced when the ambiguous formula regarding the special position of the Catholic Church was struck out of the Constitution by the electorate of the Republic. The Catholic Church in Ireland has no power and seeks no power except the power of the gospel it preaches and the consciences and the convictions of those who freely accept that teaching.
We are facing a serious situation concerning marriage breakdowns and the sadness and tragedy caused to the couples who are having their problems. A real challenge must be faced by all here in this house, by the Churches, by all the civil and legal authorities. If this amendment goes through, everybody must face the challenge of marriage breakdown and realise the trauma, pain and suffering caused to the couples involved and must make a special effort to unite to try to make marriages more worthwhile and  make more marriages work, to try to make marriage something meaningful for the couples concerned. That is what everybody should strive for and work towards.
Statistics have been quoted freely about the United States and Great Britain. People have said we are going to follow the slippery slope of America. Statistics are thrown out about marriage breakdown in America and Britain. I am different from persons in Britain. I am Irish, they are British. I am different from persons in the United States of America. They are American, I am Irish. I believe that the Irish people are different from Americans and are different from British people. I do not necessarily think that we are going to follow the path that the British and Americans have followed. I do not necessarily feel that we are going to take all of the bad points that they have had and that marriages will start breaking down immediately if something of this nature is passed by the House. I do not think so.
Figures have been quoted for the North of Ireland in regard to the number of divorces which have taken place there. The people in the North are Irish, they are part of our people. There have been a number of applications for divorce, most of which were originally made in the North of Ireland at the time divorce legislation was first passed there. There is a real and genuine challenge facing all of us and if we work together we can ensure that the family unit as we know it can continue to be strong, vibrant and alive as we would all wish it to be.
I fully understand and appreciate the views of people who like myself are anxious to retain the family unit. In the statement on the Government's intentions with regard to Marriage, Separation and Divorce reference is made to a decree of a mensa et thoro, which is a judicial separation. I have before me the number of applications for such decrees. The interesting thing is that the number of such applications has declined decidedly since the period 1972-85. I will quote some of the figures to contrast  them with the figures for nullity: in 1972, there were 30 petitions for such a decree; in 1973, 26 petitions; in 1974, 51 petitions; in 1975, 43 petitions; in 1976, 37 petitions; in 1977, 29 petitions; in 1978, 39 petitions; in 1979, 34 petitions; in 1980, 27 petitions; in 1981, 25 petitions; in 1982, 20 petitions; in 1983, eight petitions; in 1984, five petitions; and in 1985, 15 petitions.
What has clearly come across is that the number of applications to our courts for a decree of nullity has risen sharply. The following are the number of applications for decrees of nullity to the High Court — this is a sad situation because of what a decree of nullity does — and I will deal with them in five year periods: between 1966 and 1970, there were eight petitions all of which were refused; between 1971 and 1975, there were 25 petitions of which nine were granted; between 1975 and 1980, there were 52 petitions of which 23 were granted; between 1980 and 1985, there were 124 petitions of which 66 were granted.
The courts have given different reasons why they are granting decrees of nullity; some were for the lack of consent; more were for coercion, whether it was mental, physical or psychological; another reason was impotence at the time of marriage; and the failure to maintain a loving or caring relationship and was in that condition at the time of marriage. It is true to state that the Church over the years granted annulments which permitted people to remarry and to enter into further relationships. Similarly, where a decree of nullity was granted the parties concerned were entitled to remarry and enter into further marriage obligations. In both instances, the Church and the State made a point that there was no marriage in the first place. The problem this creates for children born in these marriages is that it raises questions and doubts of a most profound nature as to their legitimacy. These are not isolated incidents but are very real problems for the children born of these unions who do not know what their status is under the laws of the church or State: whether they  are legitimate or illegitimate or whether they have property rights to their father's or mother's estates.
The sad point is that the legal position in regard to a decree of nullity is that when it is granted by our High Court the children born of that union are regarded as illegitimate by our courts. They are children of the mother but are not children of the father even though they were born of that union which was regarded as a marriage during the period they were cohabitating and living together. What a situation for a young man, a young woman or any person of 15 years of age suddenly to realise that although their parents were married for 12 to 15 years they no longer carry their father's name but, in fact, carry their mother's name. This is something the Bill is making an effort to tackle.
I shall not go in for statistics because the Bill is not about statistics in any way, it is about the sadness of broken marriages and about men, women and children. I must bring to the attention of the House that between 1980 and 1985 the number of applications to the District Courts for barring orders was 15,003. Does anyone fully realise what a barring order is and the tragedy for the wife in having to apply to a district justice to have her husband barred from her home?
Mr. Enright: Thank you. It is important to bear it in mind because of the tragedy for the wife, the husband and children of that marriage. Those who are involved in the legal aid system and those who are dealing with these applications day in and day out will tell you how sad the situation is. I am 20 years practising at law and I am sad to say that the work of our courts in relation to family law matters is increasing. The experience of practising lawyers is that the number of cases where wives are battered, where children are assaulted and injured and where fights take place are too horrific to contemplate.
 I would be dishonest if I did not recognise and face up to the fact that these problems exist. Even more so, if I did not state here and now that there is a united effort needed to tackle and solve these problems with the Churches and all other bodies anxious to help and strengthen the family unit. I am referring to a small minority of cases but it is a minority which is growing. For this reason, we must be diligent in seeking out and endeavouring to eradicate, if at all possible, some of the causes of these problems in homes throughout Ireland.
In Ireland, there are some marriages which have failed and marriages where there has been a complete breakdown. In Ireland, luckily enough, the vast majority of marriages are happy unions resulting in happy homes. However, a sizeable number of persons have entered into new relationships and have children as a result. Some of these persons feel because of the fact that they are unable to remarry that their basic rights are not being catered for. Does the right for these people to remarry do positive harm to the common good? Personally I have the greatest possible reservations about divorce. It is important to ensure that easy access to divorce must be opposed. The common good would not be damaged if the Irish Constitution having been passed by the majority of our people were to allow a restricted form of divorce of the type envisaged in the Bill.
Approximately 70,000 people suffer from marriage breakdown. Where these couples have been separated for a period of five years and where it is proven to the satisfaction of the Family Court such people should be given the option, if their consciences allow, to remarry.
 I accept that a price has to be paid and I think that is acknowledged by everybody Similarly a price has to be paid for unmarried mothers, for their children and also for deserted wives. In the final analysis one must ask whether or not there is an obligation to look after people whose marriages have irretrievably broken down and failed. I recognise that there are serious financial implications. Nevertheless, the question is whether it is right or wrong to ensure that these families are looked after.
There is a very real challenge facing us at present. We have an obligation to face up to this challenge. If we do not, then in ten years time there will be absolute and total chaos. The approach made by the Government, a restrictive, limited type of divorce and a five year period built into the Bill, which can only be changed by a further referendum, is a safeguard. That is why I support this measure. It is one of the most important points in this Bill.
I say to the Minister that it is important that in this instance as much effort as is possible should be made to provide proper, qualified professional counselling and advice. This is absolutely essential. The legislation should provide that every effort shall be made to ascertain what the problems are in regard to a particular marriage, to see if that marriage can be saved or if the union can be re-established. If proper professional guidance, mediation and counselling had been provided up to now the number of applications which I have quoted might not have been as extensive. In whatever legislation is introduced a very genuine determined effort must be made to ensure that counselling and advice are given. A judge cannot go back 30 years into the lives of a husband and wife in a short period of hearing and therefore cannot make the decision. For that reason I hope that the court welfare officers and professional guidance counsellors would have the opportunity for research and for providing up-to-date information for the judge hearing a particular case.
Dr. Woods: To take Deputy Enright's last point, he is right in that the judge will have to decide many things under the legislation as it is before us. There will be considerable difficulty in that respect.
I wish to refer briefly to the contribution made by Deputy Shatter, particularly in relation to the first family. From what he said it is absolutely clear that the constitutional rights will be conferred on the second family. In his view they will not apply to the first family. He said that this is a natural enough situation. I referred to the circumstances of broken families earlier today when I asked the Minister to consider, in the context of the drafting of this amendment, the position of the family which is left behind and the difficulties which arise in relation to the family home. It seems quite clear that their rights within the Constitution, in the limited circumstances mentioned by Deputy Shatter and also in any other circumstances which arise, will be transferred to the second family. The Minister did not get a chance to come back to that but Deputy Shatter dealt with it to him.
I trust that the Minister accepts that the final provision in the divorce proposal sets out to make the granting of a divorce conditional on the making of proper provision. It states in the last section, “the court is satisfied that adequate and proper provision is made having regard to the circumstances.” This applies to the dependent spouse and children. I take it that the Minister is aware that there is similar provision in divorce legislation in most countries and also that the number of examples of cases in which a divorce has been refused because proper provision was not made is very rare indeed.
We have to congratulate The Irish Times for a very useful article by Joe Carroll on Monday, 19 May. On researching some of the points arising in last week's debate he found there were three cases since 1969 in which a hardship clause was applied and in which divorces were refused because of this hardship clause. There was none in Northern Ireland at any time. He found that Lord Simon, former President of the Divorce  Division of the English High Court, said that the Northern Ireland divorce order, like the English 1969 Act, is utterly unjust to married women in relation to the hardship provision.
The words “making of adequate provision” do not seem to have the force that the Minister has suggested. That being so, is it not the case that this provision realistically cannot be relied on or restored to ensure that dependent spouses and children will be properly provided for? Would the Minister accept that this provision is purported to operate as a condition of the granting of a divorce, but once the divorce has been granted will the provision not become redundant? Would the Minister accept that this provision in so far as it will have any real effect will have only a once for all effect, at the date of the divorce, and cannot operate later or be relied on later to make any provision for a dependent spouse or child? If a change in circumstances occurred afterwards it could not be invoked as a means of putting matters right.
Would the Minister accept that in so far as this provision will have any effect even at the date of divorce, the effect will be limited to dependent spouses and only then, that it would exclude a working wife or a wife capable of working at the time of the divorce? Does the Minister accept that when a marriage is dissolved the foundation of that marriage will have gone and, therefore, Article 41 will no longer apply to that family? That is a very important question. I asked the Minister earlier because marriage based on the family means that the family is based on marriage, if the marriage is dissolved what is the position of the family subsequently? If the Minister does not accept that that is the case, how would Articles 41 and 42 continue to apply to a divorced family when the foundation of that family through marriage has been dissolved?
We can take an example of what may happen in relation to the family home. If a married man is earning £15,000 a year and has three children and lives in an average suburban semi-detached house worth £35,000 on which there is a mortgage  of £18,000, and he gets divorced and remarries and has two children by the second wife, what will happen to the family home of the first family. How will it be defined at that stage? The Family Home Protection Act provides that the family home cannot be sold without the written consent of either spouse. Clearly, on the income of this man he could not afford to buy a second house for his new family.
What will happen in those circumstances? Are the first family to be allowed to continue to live in the family home notwithstanding that it may be jointly owned or owned wholly by the first husband? Can the Minister say if he intends to leave the Family Home Protection Act as it is, and if so, does it not follow that in the event of a divorce the protection of the Act would no longer extend to the divorced wife, she having ceased to be his spouse? In such a case the sale of the family home could be forced on the divorced wife.
Does the Minister intend to amend this Act to include the divorced spouse, and if so, would he agree that notwithstanding his good intentions such an amendment to the Act would be likely to have the effect of keeping the first or divorced family in a house and the second family out of one? In those circumstances would the Minister accept that the State through its legislation would be failing in its pledge to guard with special care second marriages, which would be undoubtedly protected by Article 41? Therefore, would the Minister not accept that such a provision in the legislation would be likely to be struck down on the grounds that it was unconstitutional? The wife has no beneficial interest in the house. She might get no interest, or only a 30 per cent interest, when a decision would be made about the home. All she would have is a right of tenure in the home. Where then, would the second wife's family home be? She could claim her right to a family home. It probably means there would be need for a whole new community property law in which the wife would get half of everything. Therefore,  the Minister may need to re-define “family home”. Once a husband leaves, the home would not be regarded as the family home.
Then we come to the question of maintenance after divorce. If a man earns £12,000 and is married with three children and gets divorced, remarried and has two or three children by the second marriage, what will happen in relation to the maintenance of both families? Under the Family Law (Maintenance of Spouses and Children) Act, 1976, the spouse has a right to a maintenance order when there is failure to maintain. Does the Minister intend to amend that Act to include in its scope a divorced spouse, and does he intend to cater for a divorced spouse on the same basis as the lawful spouse? Has the Minister considered what will happen if there were a competition between the two families for the very limited income? Clearly, after tax and other outgoings, there would not be enough left to support both families.
In so far as the Minister may intend eventually to provide even-handed maintenance rights in legislation to deal with both families, would he consider it inevitable that the second family, relying on their undoubted protection under Article 41, would challenge the legislation on the obvious basis that its had failed to fulfil the State's pledge to the second family, now founded on marriage, to guard it with special care and protect it from attack?
These are two of the areas that could be affected. In relation to dependent spouses, it has been made very clear in the course of the debate that there is no constitutional protection for a non-dependent spouse, including, possibly, a teacher, secretary or any other working spouse, even though she may be earning far less than the other spouse. It has been made clear, too, that there would be no inheritance rights at all for a wife or husband. The Minister said allowance will be made for loss of inheritance rights, but no guarantee has been given in this constitutional amendment in relation to inheritance.
 How can the courts assess a sum for compensation when the value of an inheritance would be assessed at the date of death of the spouse? In the Government's statement of intentions document there is no reference to any provision for compensation for loss of inheritance rights and the Minister's suggestion earlier today seems to be nothing more than a form of words to cover up the fact that the divorced wife will lose her inheritance rights even when by her efforts she has directly or indirectly contributed to or made possible the development of a farm or business or the acquisition of material assets by the husband. The element of compensation is important in that respect, but there is no provision in this amendment for it though there is need for a provision for such matters. The Minister has failed totally to deal with the rights of a spouse who, in the example given, has assisted her husband in running and building up his farm or business as security for their future well-being.
This is not compensation for inheritance rights. It requires a constitutional protection for the right to share in the future income from the farm or business that without the help of the wife would not have achieved the same degree of success. On the basis of the proposed amendment the husband will retain his constitutional property rights in the farm, or business, or other assets which he accrues and of which he cannot be deprived but the wife, to be divorced and abandoned by him when he so decides, has no recognition and no constitutional right for the the contribution she has made during ten, 20 or 30 years. Such contribution could stem indirectly from the fact that the wife had given up her career to pursue the job of looking after and supporting the family in the home, thus releasing the husband to work at his business, farm or his career. It could also stem directly from working long hours on the farm. Failure to make a constitutional provision to protect the spouse in these circumstances is regrettable. Legal advice I have had is that the matter cannot be catered for properly in legislation, least of all by something that,  according to the Minister, would give some kind of nebulous compensation for loss of what she might have received on the death of her former husband at a future date.
Will the Minister state how and in what terms it is possible to calculate in money terms the loss of inheritance rights of a spouse at any given date? Will he state the criteria and the factors to be used in making such a calculation? Will he say the basis on which the assets of the spouse will be calculated and the means to do that? Will he say how he proposes the courts should calculate the value to a spouse of his or her loss of inheritance rights as at the date of divorce and as of the date of death of the other spouse? If the Minister cannot calculate or have a means of calculating these matters, how can be expect the courts subsequently to do so?
The Minister has said that provision in separation deeds is commonly made to provide for abandonment of inheritance rights. It is also common for them not to do so. In the cases that will follow the proposed amendment, all spouses in all cases would lose their rights. In any case, special considerations are negotiated usually by the wife, using her inheritance rights as a self-protecting bargaining power. As a result of this amendment she will have no such power. She will have no constitutional right in that respect.
The Minister said that in divorce a mensa et thoro the spouse loses inheritance rights. Yes, that is so because the spouse is the guilty party in a decree granted on the basis of fault but in this instance the innocent spouse can lose rights. In relation to the matter of succession, the wife loses her rights on the day she is divorced. There is no constitutional requirement or protection for her to be awarded part of a farm or inheritance. There is no corresponding protection for the first wife on the dissolution of marriage, following the amendment put before us by the Minister.
Under the present law where there is no will, a widow gets two-thirds while the balance goes to the children and if there are no children the widow gets 100 per  cent. If there is a will the widow gets one-third when there are children involved and she gets one-half where there are no children. In all cases she can opt for the family home in whole or in part discharge of her rights. How does one compensate a person for future inheritance? Perhaps the wife gave up her career to contribute to the farm and to its development, although the farm is in the name of her husband. Should wives now get farms, businesses and other assets placed in joint names? Is that the wise procedure to take at this stage since the Minister has accepted fully that the wife will lose her inheritance rights?
With regard to orders relating to property, will the Minister indicate clearly the scope and type of orders he envisages the court may make in relation to property where a marriage is dissolved? In the statement of intent he refers to the intention to make such orders. Will he set out clearly the guiding principles, or is it the case that there will be no guiding principles? We have asked the Minister many questions in the past few days but he did not seem to think there would be any guiding principles and that really it would be a matter for the courts and the Judiciary to decide these matters. If that is the case, we have here another issue on which the Minister has not given any guiding principles. Is it the case that a Circuit Court judge would have an unfettered jurisdiction to carve up and dispose of the property in any way he sees fit? Will there be some constitutional control in relation to property? The Minister must answer all of these questions.
Will the Minister not agree that such situations could have serious implications for the farming community? For instance, a farm that has been in a family for generations could, at the totally unrestrained discretion of a Circuit Court judge, be taken from that family and given in whole or in part to a person who might have married into the family solely to claim the property upon the dissolution of the marriage. Has the Minister considered the effect on Article 43 of the Constitution which deals with the right to private property? Has he taken advice  on the matter and, if so, can he tell us the nature of that advice?
I have mentioned only some of the issues that arise as a result of the amendment and that need clarification and discussion. Many more issues could be raised but because of the time limitation it will not be possible to discuss them fully here and that is regrettable. The change proposed in the Constitution will have wide-ranging effects on these matters. They should be fully considered in this House so that the necessary measures can be taken.
The only constitutional provision in the proposed amendment in relation to children is for proper provision having regard to the circumstances. There is no mention of the health, the emotional or physical state of the children or their welfare generally. Unlike legislation that deals with children, their adoption, care, custody and their interests are not safeguarded as the first and paramount consideration. They are given virtually no consideration in this amendment. The court will only be concerned with proper provision for them in the circumstances. The mental or physical health of the children or their welfare is not a precondition to a dissolution of a marriage. It is put down as a precondition. The text clearly contemplates that the right to divorce is the primary consideration and, once the preliminary conditions have been satisfied, it must be granted by the court, doing the best it can for dependent spouse and children.
However, if the circumstances are such that serious injury will inevitably be caused to the emotional or physical health of the child, the divorce will be granted since there is no precondition to protect the child's health or welfare. Since no provision can be made for the child in the circumstances, nothing further can be done. If the Minister seriously intended that adequate and proper provision for the spouse and children should be made a precondition for the granting of divorce then further conditions should have been inserted stating that the court would also have to be satisfied that  adequate and proper provision had been made for any spouse or child and that no material injury to the health and welfare of the children would result as a consequence of the divorce. It seems as if children are being given little protection under the amendment.
It is clear that the children of the second marriage will enjoy all the constitutional guarantees given to the family based on marriage. It would be possible for some future law to discriminate in favour of the children of the second marriage to the disadvantage of those of the first marriage since they would enjoy the special protection afforded to the family under the Constitution.
These are some of the questions that come to mind. Obviously there are other matters which could have been discussed in detail and perhaps the Minister might have been able to make changes in the amendment which has been put forward. I trust he listened to what was said here yesterday and today about the terms of the amendment, for example, the use of the word “failed” and the reasonable possibility of reconciliation and also the “adequate and proper provision having regard to the circumstances”. Most of these are terms which in other jurisdictions have proved not to be the strong restrictive kind of terms the Minister suggests they are. Several Deputies referred to these matters and assumed there would be a Report Stage Debate and that the Minister would take their views into consideration. In effect, Committee Stage and Report Stage were taken together. That is regrettable on such a major and serious constitutional amendment.
The Minister has made it clear that social welfare benefits will change. The person who is divorced will lose benefits and will be dependent on social assistance. There are a number of implications in this. It could mean substantial loss of income per week. It raises major questions about the provision of pension rights in relation to pensions, PRSI and so on. It does not seem as if the Minister has given these matters much consideration. He does not seem to be anxious to  respond to these questions or give his views in a forthright way on the likely financial consequences for the family. A deserted wife who receives benefit now and all that goes with it, will no longer be regarded as deserted if her husband divorces her. She will only receive an allowance which will be means tested.
I regret that Members did not have time to contribute. I know that many were anxious to do so. I did not have time to tease out these matters in detail with the Minister. We did not have the normal process which takes place during Committee Stage whereby matters raised are considered by the Minister and replied to on Report Stage. It seems as if the Minister did not have any intention of changing the amendment before us. His mind was made up and it was just a question of bringing this before the House and having it passed. Many people made reasoned arguments about safeguards which could have been provided but the Minister seems to have a predetermined view in relation to these matters and passed off the reasonable concerns which people have as if they did not exist.
This is an important amendment which deserves the fullest possible consideration. The way in which it has been treated is not satisfactory and I regret that. We have made our position clear in relation to this amendment. We have discussed it as fully as we could and we will now leave the matter to the people to decide. Presumably the Minister will speak on platforms. I do not know if he is one of the directors of the campaign which is being launched. Our position is different in that we are not participating in any political campaign. We have discussed the amendment fully and maturely. It is one of the most fundamental and important constitutional issues to come before the House. When one considers how fundamental and important the issue is, it is a little sad that the whole process has been somewhat truncated and the time which could have been available for it——
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