Dáil Éireann debate -
Tuesday, 9 Feb 1988

Vol. 377 No. 6

Private Members' Business. - Judicial Separation and Family Law Reform Bill, 1987: Second Stage (Resumed).

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

Mr. Cowen

I said last week that I welcomed this Bill. It is an important measure, the culmination of the work of the Law Reform Commission and the Oireachtas Joint Committee on Marriage Breakdown. I am also glad to note that, as it has been brought forward as a Private Members' Bill, the Government are in agreement, in principle, with its objectives and await Committee Stage to see what improvements can be made as obviously there will be some after the contributions on Second Stage.

There have been some improvements in the procedure by which judicial separations have been handled as, since the Courts Act, 1981, they can now be dealt with by the Circuit Court whereas formerely they were the sole preserve of the High Court. Unnecessary expense has been avoided by dealing with these matters in the Circuit Court. However, the real problem with judicial separation up to now has been that the substantive law relating to this matter is the law which was applicable to the ecclesiastical courts prior to their abolition in 1871. There were only three grounds on which one could seek judicial separation, adultery, cruelty and unnatural practices. The Oireachtas committee and the Law Reform Commission discussed means by which we could update the substantive law relating to judicial separation and, obviously, increase the grounds on which one could apply to the courts for such judicial separation over and above the three very restrictive criteria laid down in 19th century practice.

It is most desirable — and in the majority of cases it would be true — that where unhappy differences arise between spouses they are dealt with on a mutually agreeable basis by way of separation agreement or a deed of separation, where people can resolve their problems and make their own arrangements without the need to apply to the court. It keeps the adversarial atmosphere out of the process. Regardless of whether a barrister is wearing a wig, when a spouse has to face into a court and their married life is put under scrutiny with decisions being made by a judge, it is less satisfactory than a person making arrangements through solicitors and coming to a mutually satisfactory arrangement. Matters dealt with in a court hearing could be dealt with privately and in a manner which keeps the acrimony out of proceedings as far as possible.

The Oireachtas committee regarded judicial separation as a matter of marital breakdown rather than one of trying to prove matrimonial offences by one party against the other. Obviously that is a welcome development but it is wrong to suggest that we are totally abolishing the faults principle in dealing with judicial separation in the Bill because three of the grounds in section 2 (1) involves a judge making some decision or finding of fact which will involve a degree of fault by one party or the other, whether it is desertion or adultery. All the grounds listed in the Bill are not clear to me. Section 2 (1) (a) says it would apply where the respondent has behaved in such a way that the applicant cannot reasonably be expected to cohabit with the respondent. That is fair enough as is paragraph (c) which says it would apply where the respondent has deserted the applicant for a continuous period of at least one year immediately preceding the presentation of the application. Paragraph (d) is also clear but paragraph (f), that the family and marital circumstances are such that it is reasonable for the applicant to wish to live separate and apart from the respondent and to cease to be obliged to cohabit with the respondent is not very clear to me and it could have been included in section 2 (1) (a). The family and marital circumstances referred to in (f) would, presumably, involve the behaviour of the other spouse which is already covered in section 2 (1) (a).

It is also clear that we must try to delineate judicial separation procedures here from separation agreements in the sense that one would only apply for a judicial separation where there was no consent on the part of one or the other. I do not see the point in making provision for the application for a judicial separation where both parties agree, which seems to be contemplated in one of the sections. They could arrange a separation agreement and that would be the end of it.

Section 4 deals with the obligations of a solicitor to advise a person in relation to the counselling or mediation available before proceeding with an application for a judicial separation on behalf of his client. Part of the procedure would be that the solicitor would certify to the court that he has gone through these preliminary steps before making the application for a judicial separation on behalf of his client. I would have thought that the steps a solicitor is supposed to take under section 4 are those he would normally take anyway as a matter of ethical behaviour in that when a person approached a solicitor regarding separation proceedings, he would satisfy himself that there was no reasonable possibility of reconciliation or that an attempt had been made by the client to see if reconciliation was possible. Quite apart from that it seems that the discussions he would have with the client would be all that he would have to do. It is very much a case of advising a client, giving him a list of names of mediators and counsellors and then go ahead and start the proceedings.

There should be something in the Bill which, presumably, would form part of the certificate which he would subsequently show to the court when the proceedings had started that the solicitor had attempted to contact the other party and had satisfied himself that no mediation was possible. As the Bill is outlined at present he can simply have a chat with his client without reference to the other party. You could have a situation where a client was totally adamant that he would get a judicial separation while the other party might be open to some means of agreement by which they would separate mutually and by agreement. The solicitor will have to do more than simply discuss it with his client. In his certificate to the court he would have to show that he had attempted to locate the other person and had put it to him or her — whichever the case may be — that the spouse for whom he was acting was contemplating a judicial separation and if he was agreeable to entering into a separation agreement or if it was possible for them to get together to see if any reconciliation was possible. In that respect the certification procedure as envisaged in section 4 is defective.

I have no objection to section 5. There may be exceptional cases where, within a year of the marriage, the conduct of one or other of the spouses was such that an application would have to be made to the court to allow a judicial separation within the one year period. I have no objection to that. That is a provision which is necessary in the Bill. Part II of the Bill deals with ancillary orders which could be made in addition to simply granting the decree of separation. It is probably the more intricate part or more involved part of the Bill and would require some serious deliberations before coming down with hard and fast rules on it. I have a few points to make.

In section 7, the definitions section, I note that "household chattels" do not include the family car and there may be reasons for that. In the majority of cases the car would probably be the second biggest investment which the family would enter into, apart from the house. That does not seem to be included when one is dividing the various assets of the parties to the marriage.

Section 10 deals with the ancillary orders that could be made by the judge following the granting of a decree of separation. In regard to section 10 (1) (a) it has been mentioned in the previous contributions that there should be a specific provision in the Bill that priority of maintenance payments should be made clear in the Bill over and above any other legal obligations of the person paying the maintenance. Is there any possibility that the Bill could also state that the judge would have the power to make an attachment of earnings order in the first instance rather than wait for default by the spouse after the maintenance order has been made? When you come to that stage of a judicial separation where parties are not agreeing — and probably there is bad faith against whom the application is being brought — it would involve the applicant in unnecessary expense if, after making a maintenance order under this section and he subsequently defaults he would then have to come back to the courts and seek an attachment of earnings order. I do not see why one could not have an attachment of earnings order straight away. I am not sure if that is legally possible but I will throw it out for what it is worth.

The other problem relates to section 10 (1) (g) regarding the extinguishing or reducing of the spouse's statutory succession rights. I would not agree with any change in the present situation where desertion is an absolute bar on a spouse claiming succession rights if the person has been deserted. For that reason I do not agree with section 30 (c) where, after a transitional period, a person could come back into play again after having deserted a spouse in terms of being able to claim succession rights.

Marriage is referred to in our Constitution in a way which is of importance to people who are in the marriage state. I do not see how if one party decides to desert — and leave a wife and children behind — that when that unfortunate woman, or man if that is the case, dies that he or she can suddenly come back and claim the whole place. Desertion, as far as I am concerned, means he is out as he has taken a conscious decision to leave. I do not see any circumstances which would justify him in getting back. I hope that desertion will continue to be an absolute bar in relation to statutory succession rights.

Where two parties mutually decide to separate, a provision of that agreement is that each party waives their succession rights against the other. Where two people come to a mature decision to separate, why should someone who has walked away suddenly have the right at some time in the future to get back into the picture in terms of succession rights? It does not make sense to me.

There is also a problem if no lump sum is payable and if no settlement or property orders are made. The judge could decide that the person, as envisaged in the Bill, could keep his succession rights. Therefore, no lump sum payment would be made at the time when the application is being made for a judicial separation. The husband, or whoever is supposed to be paying the maintenance, could go off and spend his money and assets and when he dies the wife has the worst of both worlds; she neither got a lump sum nor a property transfer order at the time of the separation in order to maintain her succession rights. When her husband died subsequently he had all the money spent so she ends up with nothing. In other words, when one is trying to cater for the position of varying succession rights at the time of the separation one is depending on the good faith of people and the consistency of circumstances into the future that everything will remain the same if and when one has the right to claim succession rights.

We need some certainty in this area when we come to judicial separations. I think we should simply waive the succession rights of each party in the same way as in a separation agreement. That is the normal practice. Where one is rescinding one's succession rights at the time of the judicial separation it will provide an impetus for the judge to make sure if he makes the proper ancillary orders in terms of property transfer orders, lump sum payments, adequate maintenance that the person concerned — who is the application in this case — can at any time in the future come in and vary the maintenance order. Her right to seek a variation order on the maintenance cannot be taken from her.

People who seek a judicial separation, or even a separation agreement, want simply to come to an arrangement where they can go off and live their separate lives. We need certainty in relation to succession rights. We cannot have words like "varying", "depending" and so on. It should be clear and simple. If the succession rights of each party were precluded, then we would have better arrangements at the time when the separation is being made in terms of lump sum payments, property transfer orders, settlement orders and so on.

Section 15 raises the point about the power of the court to make retrospective maintenance orders. Section 8 provides that it would be open to the court to make interim orders to be there for maintenance, custody, access, protection of the family home or the protection of household chattels. Why should it be necessary to seek a retrospective maintenance order on deciding a judicial separation is applicable in a particular case? From the time an interim order is made there should not be a significant change in circumstances to the time of making the final ancillary order. I do not know what the idea behind this is. It should not be necessary to make a retrospective maintenance order at the time of making an ancillary order as is envisaged under section 15. It may be that this is an extra protection but I do not think it will be widely used if it is inserted. When one makes an application they may not be granted an interim order and having obtained an ancillary order the respondent may be required to pay from the time the application was made. That may be the logic behind it.

An Ceann Comhairle

I intervene to advise the Deputy that he has five minutes left.

Mr. Cowen

I do not see it as being of great importance. The point has been raised and it is one I am not very clear on at present as to whether one should add additional grounds on which one may obtain a judicial separation or whether one should insert just one ground on which a judicial separation may be obtained, as is envisaged under this Bill, which would be that a marriage has broken down irretrievably. At present there are six grounds on which one can prove that a marriage has irretrievably broken down. As I understand it the Law Reform Commission did not go for the approach adopted by the Oireachtas Joint Committee on Marriage Breakdown. I have no objections one way or the other but, as I have said, section 2 (1) (f) seems to be too vague. Under it one could bring in any conceivable set of circumstances. Section 2 (1) (f) states:

that the family and marital circumstances are such that it is reasonable for the applicant to wish to live separate and apart from the respondent and to cease to be obliged to co-habit with the respondent.

Section 2 (1) (a) states:

that the respondent has behaved in such a way that the applicant cannot reasonably be expected to co-habit with the respondent.

Presumably what is envisaged under section 2 (1) (f) is going to involve the behaviour of the respondent and seems to be covered by section 2 (1) (a) as it stands at present.

I welcome the Bill. It provides much food for thought. Unfortunately, some of us have had to hurriedly prepare our contributions but it will be interesting to see what amendments will be tabled on Committee Stage. It is only on Committee Stage that we will be able to go into the nitty-gritty and get full explanations as to why certain sections are worded in the way they are. This Bill will grant formal jurisdiction to the court to deal with maintenance, custody and judicial separations in one application and for that reason alone this is a Bill which deserves support. I commend it in principle to the House and I hope on Committee Stage the various reservations which Members have can be ironed out to everyone's satisfaction.

Mr. McCartan

I intend to be brief because what is needed at this stage is to signal the position of The Workers' Party in regard to this legislation which is most welcome. The ramifications of the Bill were fully explained and outlined both in the explanatory memorandum and in the contribution made by the promoter of the Bill, Deputy Shatter. As was indicated by the previous speaker, any fine raking over of the provisions of the Bill should await Committee Stage. The Workers' Party support the Bill and welcome it but do so in a rather grudging and guarded way. I will explain that a little bit more later in my contribution in the context of the overall position that this Bill must take in the corpus of legislation which deals with family law and, in particular, matrimonial breakdown but at the outset I would like to say that The Workers' Party will be supporting this Bill on Second Stage and will be constructive on Committee Stage in the hope that this Bill having the support of all parties which is now on the record of the House will see its way quickly through both Houses and on to the Statute Book.

It would be remiss of me and The Workers' Party not to commend Deputy Shatter for his initiative in bringing forward this legislation. It is to be doubly commended on the basis that legislation being taken in Private Members' time has achieved all-party support for its principle and the general thrust of its provisions. Being a Private Members' Bill it must, having passed through Second Stage, move on to be dealt with by a special committee. History has shown that the progress of such special committees has been rather slow but in view of the fact that the thrust and objectives of the Bill have received all-party support it is to be hoped that within a week of the conclusion of the Second Stage debate that the special committee will be established.

Some reservations were expressed in response to the Minister's, Deputy Woods, contribution in which he seemed to indicate that he believed that the next step would be lengthy of necessity, which I frankly do not accept, and would involve much consideration by the Minister's Department and other bodies. We have to underline the fact that an all-party committee deliberated for over two years on the very subject matter of the Bill and that they came to the conclusions which form the basis for this legislation. It would be very sad if, following the magnanimous gesture of the Government in accepting and supporting this Bill, it was to be set at nought, retarded or tripped up by parliamentary nit-picking on Committee Stage.

I hope when this special committee is established that The Workers' Party will be afforded an opportunity to participate in its deliberations and to be represented on it. As a party we have been very active in the debate on proper legislation for marital breakdown and indeed were very active in the referendum dealing with the question of the availability of divorce to Irish people. We would be sad if, for whatever reason, The Workers' Party were excluded from that committee.

This is a positive step by the Government in that they are prepared to support legislation introduced by an Opposition party. That is a welcome departure and I hope that new thinking does not stop there. The Government should consider taking on board other legislation put forward by Opposition parties. I am thinking in particular of proposals put forward by The Workers' Party dealing with important areas. For example, The Workers' Party circulated legislation concerning the drastic position of the office of the Ombudsman. We want to give legislative authority to the Ombudsman to correct the huge backlog of work that has accumulated in his office by reason of cutbacks. Our party have also circulated proposals relating to the abolition of ground rents. Such proposals should be considered by the Government who should not adopt the tired old attitude of consigning proposals from Opposition parties to the shelves without considering their usefulness.

Another reason for welcoming the Bill is that it emanated from a specialist committee established by both Houses. There are a number of similar committees engaged in useful deliberations and if their reports are given proper attention by the Government we will have more constructive legislation for the community. The Joint Committee on the Secondary Legislation of the European Communities, for example, have been looking at the directive on the whole question of strict liability for producers and distributors. That directive must be incorporated into our domestic law by July next and the Joint Committee have presented to the Government a useful report on it. The joint committee want the Government to introduce the appropriate legislation in good time for the House to be able to debate the issue. The Government should ensure that such committees are not ignored in the parliamentary process.

I should like to know why the Joint Committee on Marriage Breakdown, having presented their report in March 1985, did not take the next step and commission the drafting of legislation based on their findings for presentation to the House in 1985. Strictly speaking, the terms of reference of such a committee do not allow for this but committees who carry out comprehensive examinations of different topics should seek a redefinition of their terms of reference to allow them to submit draft legislation based on their deliberations. That did not happen in the case of the Joint Committee on Marriage Breakdown and we are indebted to Deputy Shatter for basing this legislation on the report of that committee. As a result of the joint committee not preparing a Bill based on their report we have had to wait three years for such a proposal to be presented to us for discussion.

While I do not want to pour cold water on a discussion on this topic I have a sneaking suspicion that many of the contributions are in total disregard of the fact that an all-party committee spent many hours listening to submissions from outside groups and giving careful consideration to their findings. I am a little suspicious of some of the arguments being put forward in response to the Bill and the points being raised by various quarters in the House on the desirability of accepting the Fine Gael Bill. Are the Government losing the sense of magnanimity they displayed in the last term when they announced that they would take this legislation on and see it through all Stages? The Government should bear in mind that the Bill was not hastily prepared but is based on years of work by all parties. They should consider that it closely follows the recommendations of the Joint Committee on Marriage Breakdown published in 1985. It would be a pity if it was to end up in a committee with members squabbling about its contents.

At the outset I said that our support was guarded and grudging and I should like to explain that. It would be wrong to lose sight of the context into which this legislation must be slotted when dealing with family law or the law relating to marital breakdown. I do not think I could be accused of denigrating the work of the joint committee if I suggested that it was established as a diversion from arguments that were developing and which reached their inevitable conclusion in the divorce referendum of June 1986. I do not think it would take from the work of that joint committee if I suggested that it was a device created by the Government of the day to seek to be seen to be doing something about the issue of marital breakdown while at the same time not dealing with the whole question of the need for divorce in our jurisdiction.

It is important to make the point that we are not legislating for divorce. Support for the legislation must not take away from the demand and need for the Government, and all parties in the House, to look at the prohibition on divorce as contained in our Constitution with a view to doing something positive about it. Divorce is a civil right and it must be introduced into our corpus of law one way or another without much delay. I hope that in supporting the legislation we are not putting on the back burner or deferring for longer than necessary, the need for another initiative leading to the introduction of divorce as a civil right. We have to underscore the fact that divorce is ultimately the only effective and humane way to deal with irretrievably broken down marriages. People in that situation must be given the opportunity and the right of a second chance at married life. It would be wrong of us to think that we were dealing with the whole area of irretrievable marriage breakdown through this legislation.

The Minister in his contribution took issue with the term "irretrievable breakdown" in the context of the first part of the Bill. I do not support the Minister in that view. The notion of an irretrievable breakdown is a useful and workable one in the context of this Bill. We must seek to contract our grounds and to establish one succinct ground for applying to court for a judicial separation. All such applications are made because parties perceive that their marriage has irretrievably broken down, but through the process provided for so comprehensively in the Bill the parties might well be brought to the stage of realising that their notion of irretrievability is not absolute. That is a revolutionary departure in this legislation. For the first time we are legislating actively in an attempt through the courts to secure and maintain the institution of marriage. This does not, of course, address the many thousands of people who have gone far beyond that stage and who have made new arrangements which they cannot consecrate with a civil marriage because of the absence of divorce.

This Bill is a legislative device to seek to arbitrate fairly between opposing or conflicting interests and rights relating to maintenance, property, custody and succession and all the other issues which caused so much worry to those who opposed the introduction of civil divorce in 1986. It is a legislative process which will actively work to protect and promote the institution of marriage because so much will have to be done before a court will move to make an order of judicial separation and any ancillary or interim orders which might have to be dealt with. It is a legislative process which will help to protect the rights of children in the context of all those issues.

It is incredible that one Member of this Dáil was capable of drawing the legislation together, borrowing from a report which was in existence in 1985, and presenting it to us. What was wrong in 1986 when Fine Gael and Labour sought to promote a referendum on civil divorce? It failed simply because the proposal was not supported with legislation along the lines of the Bill before us. There were arguments and worries about property rights, income and maintenance and succession rights. People who opposed divorce went around the country sowing seeds of doubt among people who were worried about these issues in the context of civil divorce. All it needed was simple legislation similar to that before us which would have helped people to find an answer to these questions. If the words "civil divorce" were substituted for the phrase "judicial separation" that whole debate would be adequately dealt with. It serves to bring home the point that while the Government of the day sought to hold a referendum in the face of major public demand, they did not have the political courage, with the exception of individual members of both parties, to see the matter through and to couple it with effective legislation of the type we have today. That would have answered very many of the questions which worried people at that time.

We have in this legislation a framework that is logical and workable and which will help to advance at least in part the corpus of law available to people troubled in marriage. It is hoped that once it passes onto the Statute Book it will become another cogent argument for civil divorce. Once this legislation becomes law — let us hope that is sooner rather than later — we will have in legislative form the conditions, rights and facilities available for civil divorce, if such existed, except the right to remarry. All other conditions can be arbitrated upon in the courts. Only the right to remarry will be omitted. This omission will be challenged as a sectarian imposition by church interests and will be far more effectively dealt with in debate because people will be aware of the legislation covering their various rights should civil divorce be introduced. I look forward to that day and to this legislation assisting that argument when it arises.

A feature of the legislation is its effort to make the law and the judicial process more accessible to people in conditions of marriage breakdown who need it. We must look at the whole question of the availability of many, if not all, the remedies in this Bill at District Court level. I am not taken by the argument that District Court judges are not capable of applying the law with regard to family rights. At the moment they deal with a huge area of law such as barring, maintenance, access and custody on an interim and emergency basis. There is no reason why some if not all the remedies suggested in this legislation should not be available in the District Court. There is always the right of appeal to the Circuit Court for people who feel aggrieved. The District Courts are the most democratic, readily available and accessible courts. Many people who would not have the property or wealth interests to prod them into going to court would be very easily facilitated by some of the remedies they would be able to avail of without any great difficulty by way of judicial separation in the District Courts. There is nothing to stop the Government when accepting such a proposal also insisting on education courses for members of the Judiciary at any level. I believe they are necessary and should be considered by Government.

The second issue in this general area of accessibility of the law and its remedies to the people is the question of legal aid. I know that as a Private Members Bill it must have this useful device contained within it that the legislation involves no charge on the Exchequer or no staffing problems for the Minister. That provision of necessity must be there because it is a Private Members' Bill and cannot, I believe, hope to succeed unless that recital is contained with it. Nonetheless I find it remarkable that we must be considering this type of legislation without having regard to the present existing facilities or lack of them in the civil legal aid offices. The vast majority of people would avail of these remedies when they are on the Statute Book but many of them will be unable to afford the process of going, through private solicitors, to the Circuit and High Courts. The civil legal aid offices are essential for the effective working of this Bill. For that reason I hope that something radical will be done by Government in trying to relieve the overcrowded lists and inadequate staffing in our law centres.

The Bill is to be very much welcomed in the proposal it puts forward for the establishment of separate family courts. I am a bit worried about the Government's response and suggestion that, particularly in rural areas, there are logistical problems. There are not, because the Bill allows for a separate time or place or day. As I interpret the Bill it does not require the appointment of extra judges or the establishment of separate court buildings. It is so carefully and well drafted that its requirements allow for very different conditions, rural or urban. The important thing is to take the listing and hearing of these cases out of the average run of the mill listing of cases and to put them away into separate chambers or separate times or separate days. I do not believe that we should pour cold water on the provisions of the Bill. The Bill seeks to promote the introduction of informality. Ridding the courts of gowns and wigs is a very welcome development. It is something I sought to do in the corporation, where I tried to get rid of the gowns. It has always been a curious thing to me that with the revolutionary introduction of this State in 1922 the two areas in which we did not in any way interfere were the courts and the local authorities and they maintained all the trappings of the colonial regime. It is remarkable that we still rely on them. I do not know why.

I do not think it is an understatement to suggest that this is revolutionary legislation in certain regards. For the first time we are legislating to tell lawyers how to conduct business with clients in their offices and we are legislating to protect and promote the family as an important institution. We all support this and I believe it is a whole new departure and should be welcomed. The committee and the Bill are to be supported for that reason. It is also in part revolutionary in its attempt to dismantle the formal structures and attitudes of our courts in dealing with family matters. It is an effort to move towards the introduction of family tribunals, all of which is to be welcomed. I hope that because we have all-party support that we will have the special committee established without delay. I hope that we will sit down on an all-party basis to constructively contribute to the amendment of the Bill if it is necessary. Having read through the Bill carefully and thoroughly I do not see any great need for an amendment to it. I think it is well drafted. It will be looked at constructively by The Workers' Party on Committee Stage. I hope that without any significant delay this legislation will pass onto our Statute Book and that the Government will provide the resources to give it the effective means of implementation for all people and not just those with property and wealth alone.

Mr. Shatter

On a point of order, I am obviously anxious that Deputies on all sides of the House would have an opportunity to contribute on the Bill. If I may ask for guidance, I think to date there have been only two Fine Gael speakers, myself and Deputy Barnes. I think Deputy D. Ahearn would be the fifth Fianna Fáil speaker. Obviously he is welcome but it would seem, a Leas-Cheann Comhairle, that there is something of an imbalance in that. It would have been expected that Deputy Flanagan would be called next. We had two days of debate last week and there was only one Fine Gael speaker on each evening. The Ceann Comhairle had previously indicated that he would redress the balance.

An Leas-Cheann Comhairle

Deputy Shatter, I have listened to the point that you have made. Let me explain that traditionally the debate swings from one side of the House to the other. Already the Government side have had five speakers and they will have to follow the Opposition side without breaking up the parties. Fine Gael have had two speakers, the PD Party one, The Labour Party one, and The Workers' Party one. That is five speakers to five speakers and nothing could be more evenly balanced, in which case I am now calling Deputy Ahern.

Mr. D. Ahern

I do not intend to be too long. I welcome the opportunity to speak on this Bill. I compliment Deputy Shatter for bringing it forward. Deputy McCartan said earlier that perhaps people might have regarded it as a quickly rushed through Bill. I do not accept that and I think Deputy Shatter knew exactly what he was doing when he brought forward this Bill. We have had various commissions and committees sitting in the area of marital breakdown. Quite a lot of work has been done in that regard. This Bill is the culmination of a great deal of work that was done particularly by the Oireachtas Joint Committee on Marriage Breakdown. We are dealing tonight with a Bill on divorce a mensa et thoro. In effect to call it divorce in any shape or form is a misnomer because there is not the ability to remarry in this country. Recently we have had a referendum where the people of Ireland had their say and they have said quite convincingly that, for one reason or another they do not want to make provision in the legislation at present for the right to remarry. Accordingly, we have to try to amend the legislation or to go forward from there taking into account that view. As far as I am concerned this Bill goes quite a long distance to provide everything that should be provided at this stage, given the fact that we cannot include the right to remarry in divorce legislation. The Law Reform Commission in 1983 and the Oireachtas Joint Committee that I have already mentioned seem to have had different approaches to the problem. I do not really know why, because the Law Reform Commission was more or less made up of people involved in the area and I think so also was the Oireachtas Joint Committee.

On the question of judicial separation the Law Reform Commission proposed five different grounds on which judicial separation should be available, whereas the Oireachtas Joint Committee proposed one ground based on six facts which more or less corresponded with the grounds proposed by the Law Reform Commission. Deputy Shatter's Bill generally proposes to implement the recommendations of the Oireachtas Joint Committee. There are pros and cons in relation to this. The concept of irretrievable breakdown, which is really the nub of the Bill, was introduced in England in the Divorce Reform Act, 1969. That was a ground doing away with the element of fault, saying that from here on in you proved the facts. The court had a duty to inquire into the marriage and the evidence put forward by both spouses. It was a simple assertion by the court on the evidence as presented to it. Irretrievable breakdown seems to sit easy in the area of divorce, but in regard to judicial separation I see a problem in that "irretrievable" infers the non-possibility of a reconciliation at a future time. The very fact that the legislation provides that the couple at a later stage if they so wish can discharge the order of the court is really saying that the "irretrievable" that was there previously is no longer there. Perhaps we should call it something else or build something else into the legislation.

Section 2 of the Bill lists a number of grounds or facts upon which the irretrievable breakdown ground is put forward. I note that the previous Government in their statement of intent went along generally with the recommendations of the Law Reform Commission. The present Government appear to be going along with the same recommendations of the Law Reform Commission rather than those of the Oireachtas Joint Committee. The problem with the proposed legislation is the sixth of the grounds listed in section 2 (1) (f), and Deputy Cowen referred to this. That provision would cover a multitude and it generally would mean that any ground that would be put forward by one spouse or another may allow a court at some future date to bring in an order of judicial separation.

The provision relating to reconciliation and mediation is to be welcomed. It puts an onus on solicitors and lawyers involved in the process to prove to the court that they have ensured that the people who come into court have gone through proper counselling and mediation procedures. That is probably stating the obvious because in this day and age when couples come into a solicitor's office saying they want a judicial separation they cannot agree; always the tendency is to propose to them that they should either see a counsellor or someone who would act as a mediator in these circumstances and try either to agree to disagree, or to put together some separation agreement that would be all right for both of them.

Deputy Shatter has chosen to put the ancillary orders provided for in section 10 along with the judicial separation order and this is welcome. Anyone involved in the family law area knows of the plethora of applications that have to be made where there is a problem in the marriage, and that is a very expensive and complicated procedure.

The provision in relation to the family home is to be welcomed. I say as a criticism of the Government and all Governments previously, that we have talked a great deal about putting in order the law in relation to the family home. We have the Family Home Protection Act, the import of which is to be welcomed, but it has caused many problems for a number of years and has given rise to a number of court actions for family people to decide one way or another in relation to the family home. The time is ripe for some comprehensive review in this regard.

Section 13 of the Bill is particularly to be welcomed. It gives recognition to the spouse, usually the wife, for the work that has been carried out in support of the home. Up to now it has been left to evidence in court to whatever to be produced by the wife to establish her right to an interest in the family home. Section 13 gives this statutory grounding. The provision regarding maintenance increases the power in relation to the maintenance order under the Family Law (Maintenance of Spouses and Children) Acts. Again, this is welcome and nobody on any side of the House would have any problem about it.

I have a problem regarding the family law courts. It is not often I find myself agreeing with Deputy McCartan. He asked why the District Court should not be involved. As a practising solicitor I find the whole procedure of family law in the District Court and the Circuit Court degrading and demeaning to the people involved. A husband and wife may be hanging around court all day while other cases are being heard and the judges tend to put the family law cases to the very end of the list. They do so in my district. That means that more particularly the wife is waiting around all day not knowing what is happening. This causes its own problem. Recently I had a woman in with me who is going through the barring order procedure and she ended up, having waited in the court all day, going home five minutes before her case was due to be heard, and the husband is still in the house.

The possibility of getting the District Court involved in this should be considered. Here I see a flaw in the Bill. Why should the High Court be excluded? Apart from its appellate jurisdiction it is to be excluded and the cases are to be heard on the Circuit Court only under the name of the family law courts. All courts should have a role in this and it should start in the District Court. From my experience I feel that up to now the barring procedure has been used by spouses in some cases in the District Court as a way of getting a judicial separation. They come in and allege some sort of conduct against the husband or the wife — usually the husband — and, as a result, are able to get in effect a judicial separation for a certain period in the house.

The provision in relation to wigs and gowns is to be welcomed. Anyone involved in that area knows they have an intimidating influence on litigants in the family law areas. We should try to get away from the whole idea of "him" and "her". I agree with the Minister about the provisions in relation to succession. Certainty is an absolute necessity in regard to succession rights and this Bill puts some uncertainty into that area. If a separation is ordered each spouse should walk away and there should be a clean break.

A number of commentators have said that this Bill is trying to do away with the whole idea of fault in matrimonial proceedings. I do not necessarily agree. In any type of court action or adversarial procedure there will be an element of fault, taking human nuture into account. Whoever is making a decision ultimately will have to come down on one side or the other on the facts as presented to him. Therefore, to say that this Bill does away with fault is not strictly correct, and I would refer particularly to sections 2 and 14 in this regard because there a judge has to make a decision one way or the other based on the evidence put before him.

Deputy Harney said that children were regarded as second class citizens to parents. I do not agree with that. My experience has been that in any of the cases that have gone through courts the rights of children were always regarded as paramount. That is the way it should be and she agrees with that but I do not accept that they are treated as second class citizens. I agree with her that a report on the children should be mandatory and that there is no provision in the Bill in relation to this. This is something which should be looked at. I agree with her in relation to raising the marriage age to 18. It is high time we looked at this area and increased the age because I feel people are getting married far too young and do not realise what they are doing when they decide to get married.

I do not often agree with Deputy Taylor but I noted he started his contribution by saying that legal remedies were available to certain people only. As someone who has been involved in a good deal of family law I have to agree with him. I am more often not paid than paid. In effect, in a country area one is providing a social service to the people, particularly to a wife who may be in trouble in that she has no money coming into the house and has to feed her children and if she has to go into court she has no money to pay the legal costs involved. The free legal aid scheme is not working as well as it should. It is totally inadequate. Unfortunately, our budgetary situation may not allow us to amend the scheme but it is something which should be given top priority in the future.

Deputy Shatter must be complimented for taking this initiative and the Government have to be complimented too, on the attitude they are taking to it. There is an opportunity at this time to do a complete overhaul of the family law area and I quote, for instance, the family home. Perhaps more provision should be included in this Bill in relation to the family home. On the whole this Bill should be welcomed and I look forward to making a contribution on it on Committee Stage.

Mr. Flanagan

I am glad of the opportunity to contribute to this most important debate so far as the reform of our family law code is concerned. I should like to compliment my colleague, Deputy Shatter who has established himself over the years as the expert in the family law code of practice in this country and it is fitting that he should be the one to be responsible for this milestone in legislation, of being the first person to have a Private Members' Bill run a very favourable chance of being enacted, which I think is something we have not had since the fifties. We can certainly learn from this approach so far as Private Members' time and legislation is concerned. I should like to see this legislation being the first of many from the Opposition benches to be enacted.

I should like to record my appreciation of the Government's attitude towards the Bill and of the contribution of the Minister for Social Welfare, Deputy Woods, when he stated that he was anxious that the Bill be enacted as quickly as possible. I hope that when the Bill is under discussion on Committee Stage, he will not see fit to amend the Bill in the manner in which he may have indicated in his contribution last week.

During discussion of this Bill so far, it is fair to say that there was an underlying conflict between the Opposition and the Government with regard to the fundamental section of the Bill, that is section 2. I see a conflict emerging with regard to the report of the Oireachtas joint committee and that of the Law Reform Commission. I should like to remind the House of the very important role of the Oireachtas joint committee and the very thorough manner in which the entire concept of our family law code was discussed. It is fair to advise the House of the various sectional interest groups and the wide and diverse participants who played a part in submitting evidence and attending the hearings of the Oireachtas joint committee, groups as diverse and as far apart as the Knights of St. Columbanus, The Workers' Party, the Royal College of Psychiatrists, the Irish Theological Commission, the Irish Family League, the Family Law Reform Group and the Divorce Action Group. These were people from all walks of life who had an interest in the family law code as it stands in this country today, people who have a sincere and genuine belief in reforming the family law code for the benefit of the people and in particular, for those in most need. As well as the submissions from the groups I have mentioned 700 written submissions were made to the committee from people throughout the length and breadth of the country.

Such was the thorough nature of the deliberations of the committee that when producing their report they went into tremendous detail and it would be a pity if we, as a Legislature, were to opt for the Law Reform Commission approach rather than the Oireachtas joint committee approach. Without demeaning the role of the Law Reform Commission, it must be pointed out that they did not engage in any oral submissions or invite submissions from any interest groups. It was though they looked into their own hearts and decided what was best for the Irish people.

I should like to record a welcome for section 2 as it stands. I hope that on Committee Stage it will not be amended in the form suggested by the Minister for Social Welfare.

The Bill deals fundamentally with the question of marriage breakdown. I was interested to hear Deputy Ahern and a number of speakers last week mention the fact that a raise in the marriage age was something that should be considered. I see that as being a fundamental point because many marital problems stem from the fact that people enter the contract of marriage without due and adequate preparation. In many ways, it is a contract people can enter into far too easily. It is fair to say that people can enter into a marriage contract far easier than they can negotiate a contract for the mortgage of a house or negotiate a visa to many parts of this earth. It is regrettable that regard is not given to due preparation for marriage. Statistics show that in continental Europe and in the US it is marriages between teenagers which unfortunately break down.

Section 4 of the Bill is important as it imposes on the solicitor an onus to advise a client in a family law matter to seek professional guidance and the advice of a mediator. We cannot underplay the importance of marriage guidance counsellors or mediators in the role of family law. I will deal later with the lack of training of members of the legal profession, including judges in the whole area of family law. It is of vital importance that a solicitor advise his client of the need to engage the services of a marriage guidance counsellor. It was suggested by some Deputies that the advice of a solicitor to his client was too loose and not sufficiently binding. Deputy Abbott felt that there should be compulsory referral by a lawyer of his client ot a marriage guidance counsellor. We would want to be careful about things like that. If it were compulsory we would certainly lessen the role of the guidance counsellor as far as the court was concerned. It would be difficult for a court having considered the report of the counsellor to separate a genuine party in difficulty who sought the advice of a guidance counsellor from the person who went to a guidance counsellor simply because the law stated that one must go to a marriage guidance counsellor. This would lead to a lessening in value to the role of the mediator and that would be regrettable.

Section 8 of the Bill deals with the interim measures available to the court prior to a full hearing. That is important when we realise that we are dealing with the most traumatic of legal difficulties, that of family break-up. The immediate relief contained in section 8 is quite important when we consider court delays because of the huge lists that have been referred to by previous speakers and when one considers the inadequacies of law centres. I do not blame the people who work in the law centres but I have noticed that because of the huge amount of work in the law centres adjournments are often the order of the day. In family law cases an interim measure is important when there is a delay in bringing the case to the floor of the court.

Section 10 providing 13 ancillary orders is to be welcomed because of the cumbersome and traumatic proceedings in a court hearing. A person going to court in a family law case wishes that he will have to go to court only once for such traumatic events, rather than having to come in and out of court week after week seeking various orders of redress. Under section 10 it is possible that a number of orders may be made on the one occasion. This is also a better system with reference to the expense of court appearances. In the course of submissions to the Joint Committee it was mentioned that the cost of a High Court action can be in excess of £1,000 per day. In dealing with the expense involved for people who often-times can ill afford to go to court, it is absolutely vital that people get full or as near as possible full redress by one trip to court.

A number of speakers referred to the manner in which family law today operates. Family law is the poor relation and that it regrettable. We have only to look at the way in which family law cases are dealt with in the courts to see that it is the poor relation. Family law lists are more often than not read in conjunction with licensing applications, criminal matters, equity matters and civil proceedings. My experience shows that family law lists are put in for perhaps a Friday morning or afternoon at the end of a hard week in the Circuit Court. That has led to a perception on the part of the judges and the officers of the court that family law is less important than other aspects of the law. Because courts are being cleared on a daily basis to read over the family law lists, people engaged in other matters feel that they are being pushed out because the court has to be cleared for a family law matter. It is totally unacceptable that family law courts operate in the same surroundings and at the same time as civil and criminal matters.

The question of accommodation has to be addressed. It is regrettable that family law cases are dealt with in the ceremonial surroundings of a courtroom where witnesses and respondents have to take the stand just as criminal witnesses do and that there are formalities such as taking the oath and speaking from the dock. The system needs to be reformed and this Bill is a step towards addressing these inadequacies. The hostile environment of a court setting is not suitable to family law cases. I welcome what has been happening in many courts up and down the country where family law cases are held in the less hostile surroundings and the privacy of the judge's chambers. This is not happening often enough and I should like to see greater advances made in this regard. The hostile environment of the courtroom and the formal nature of the proceedings give rise to the adversarial aspect of family law matters, which is regrettable. This is in some way addressed by my colleague's Bill. A family law case, be it an application for a barring order, or for a judicial separation, is in many ways a battle — between the lawyer and his opposing party, between the husband and the wife.

Debate adjourned.