: The Labour Party made attempts to amend Article 41 of the Constitution in the interests of two categories of children, the children of legitimate parents who cannot be adopted and illegitimate children who are discriminated against under that Article. I have referred to the attempts to assist such children and the lack of success of those efforts. Since then no action has been taken on those issues. The motion before the House brings in another area where, because of the restrictive nature of a provision in the Constitution, considerable hardship is inflicted on a section of our population. I am referring to those whose marriages have irretrievably broken down. We submit that any comprehensive package of legislation to resolve their problems is, because of the Constitutional provision, rendered impossible. It is out of compassion for the plight of those people and out of consideration for the need to relieve the tensions and problems under which they live that we tabled this motion. We realise that this is a sensitive, controversial and emotive matter on which strong views are held inside and outside the House. Nevertheless, we feel that this issue must be faced up to by legislators. We must not shy away from it because it affects many people directly. Our submission is that Article 41.3 of the Constitution affects adversely the welfare of a growing minority of our citizens.
Our motion recognises the need to review the Constitution in the light of the hardships suffered by such people and the anomalies it gives rise to. Our motion recognises the sensitive and personal nature of the issue involved which should transcend party politics. We propose the establishment of an all-party committee to consider and report on an appropriate amendment. That report should be presented to this House as a first step towards the eventual enaction of a comprehensive law on marriage here. The form of the amendment will be a matter for the committee to agree on in the first instance but the final decision must rest with the people. All we are asking in our motion is that the people be given the opportunity to decide in the near future on this issue. We are aware that Article 41 was considered by an all-party informal committee, which reported to the House in 1967, in the context of the presence in the State of minority religions and in the context of the relations which existed between the north and south of this island since the Northern population had divorce rights under the law applicable in that area. That committee proposed the deletion of Article 41.3.2 which states:
No law shall be enacted providing for the grant of a dissolution of marriage. That all-party committee proposed for consideration its substitution by the inclusion of a phrase to the effect that in the case of a person who was married in accordance with the rites of a religion no law should be enacted providing for a grant of a dissolution of that marriage on grounds other than those acceptable to that religion. The committee further recommended the deletion of Article 41.3.3 entirely. That subsection prohibited those persons whose marriages had been dissolved under the laws of any other state from contracting a valid marriage within the State during the lifetime of the other party to the marriage.
As we are all aware, those recommendations were never acted upon. They never formed the basis of legislation presented to this House. In the case of the latter recommendation the difficulty seems to have been resolved for a number of people, particularly for deserting husbands who fulfil domiciliary requirements abroad and whose wives under the antiquated law on "domicile" which we have here are still presumed to be resident where a husband is resident. We have a situation now where that difficulty has been resolved for a number of people. In so far as the prohibition of dissolution on grounds other than those acceptable to the religion in accordance with which the person was married is concerned the case has been made, with justification, that freedom of religion is guaranteed by the Constitution and such freedom, if it is to mean anything, must mean freedom either to choose or to reject a particular religion. The case has been made that it is not the function of the State to enforce the rules of a particular Church on their members, or to legislate for particular religious beliefs or discriminate between different sets of married couples on the grounds of religion. That is not to deny the rights of individual Churches to lay down rules concerning the dissolution of marriage or to appeal to the conscience of its own members. The question seems to be that the State, this House, should not legislate for particular religious views.
There are people of different religions, and some without any religious belief, in the State and it is not the function of the State to buttress or discriminate between various religious beliefs. In the course of a book, The Case for Divorce in the Irish Republic, by William Duncan, an indication of the attitude of the Church towards the position of the State vis-à-vis the Church in relation to matters of this nature is given. The Hierarchy were giving their stance on artificial contraception and they stated:
It does not follow from this that the State is bound to prohibit the distribution and sale of contraceptives. There were many things which the Catholic Church held to be morally wrong but which it has never suggested should be prohibited by the State.
I suggest that this is an area where the same norm or same set of rules should apply. We argue that it is now 13 years since the all-party committee reported and that the amendments suggested would cause more problems than they would resolve, or certainly as many. In any case the time has come to look afresh at the matter and perhaps come up with a more appropriate amendment of the Constitution, one which might meet to a greater extent the actual needs of people today. The position our party holds, I submit, is shared by many people outside the party but my mandate is to speak for our party. Our position is that urgent review is needed in this area. It is no longer realistic to insist on a total and uncompromising ban and that it remain in theory while the facts are that there is an ever-increasing rate of marriage breakdown. We do not have actual numbers and I do not think it would be possible ever to secure them but the inclusion in the married status of the term "separated" on the census of population form would have helped in this regard and perhaps given some guide as to the number of separated people. No such category was provided for although the matter was brought to the attention of the House pretty forcefully at the time. The only estimate we seem to have is that given by the Divorce Action Group. I assume they are people who have a very serious interest and real concern in the matter. They estimate that something in the region of 25,000 couples are involved, 50,000 people. It is by no means an insignificant minority and it is a growing minority of people who require some action from us in this area.
We have a more authoritative source in respect of a reply to a parliamentary question on 29 April last when the Minister told the House that there were 11,150 applications for deserted wives' allowances at that time. These are only applications; we know that very many other people are deserted or separated who do not apply for these allowances, some of whom may qualify and some who may not. We can assume beyond doubt that the figure is far greater than the 11,150. There is considerable public sympathy for the victims of marriage breakdown and of desertion particularly. To compound their misery they are relegated by the State to a standard of living which is far below the standard acceptable to other sections of the community. There is a great deal of goodwill towards them and concern for their plight.
I think it is also the experience of every public representative that some marriages are in a hopeless condition. Those who are deserted are not the worst off; desertion in some cases can be a merciful end to years of punishment and misery. As a woman representative perhaps I have more access to the confidence of other women and the problems that exist for them in the area of marriage.
From the gruesome details I have been given at clinics and by constituents and by people outside my constituency I can picture the marriage experience of some women. I have been shown the bruises old and new, fading and recently inflicted, broken fingers, black eyes, burn marks, all the marks of a terrorised marriage, a violent marriage. I have met children who go to bed in terror each night afraid to sleep awaiting the return of a violent, perhaps drunken father. I know of marriages where the partners have not spoken to each other for years. These things are realities in our society. I know of barring orders taken out in trepidation, repeatedly violated with no proper protection from the forces of law for those who are victims of violence in this regard. I cannot in conscience accept that we should without question accept that such marriages remain in all cases legally binding for life and that we should refuse to give the Irish public an opportunity at this time to pronounce afresh on the whole matter.
It is also my experience that most of the people in the categories I have mentioned are in the lower income bracket—at least most of those who have given me their confidence are in that bracket. Often the husband is unemployed and very often they live in grossly overcrowded accommodation, perhaps in a small room in the home of the parents of one or other of the parties to the marriage. Very often they are victims of an educational system that has passed them by and for them there is no resourse to the more expensive legal remedies that exist in our State, inadequate though they may be.
It has been contended that in the case of the people I have mentioned it is separation not a permanent dissolution they need and that that would be the answer to their problems. Kathleen O'Higgins in her study of marital desertion in Dublin found, very much to the surprise of some people, that particualrly among the younger deserted wives many of them wanted to re-marry. Generally, of the people in this category many wives would be first to agree that while a permanent solution should be available, and there are cases where dissolution should be available, many of them would not see it as a solution to their own problems. I can understand that they would not see it as an immediate solution to their problems. Many of them would have objection on religious grounds. The immediate priority for such people is to be rid of what we may term the brute who has terrorised their lives and the lives of their children. A period of separation, or relief from such tension might heal those wounds. I ask the House is it fair that the State, even where people's own consciences permit it, should unrelentingly and in all cases and for all time deny them and their children the comfort and happiness of a complete family life which might be theirs if a second marriage were available?
I have been talking about women but I am not suggesting that the victims of broken marriages are always women. Of course there are men also. I think it serves no purpose to apportion blame particularly where there is a prospect of reconciliation—we do not rule that out.
Our motion takes that into account, because as a party we consider that to be the primary aim. It may be that professional help, a decent home, medical help, may be needed to effect reconciliation, and we accept that. We believe counselling before marriage to be a very important consideration. It might prevent much of the misery about which I have spoken.
It is a very sad reflection on the attitude at present prevailing in Government circles towards marriage, and it is evidence of the lip service only to the State's constitutional pledge to guard with special care the institution of marriage on which the family is founded, that in 1979 the Department of Health provided only £25,000 throughout the State for marriage counselling services. If my memory serves me right, more than that was provided in the same year to buy hurleys for young people. Hurling is a most commendable pastime for young boys, and young girls too, but surely the priority in regard to children should be that those into whose care they are entrusted should have guidance to enable them to form a satisfactory relationship with the children and with each other.
We were the first to emphasise the need to make efforts to equip people properly for marriage and that every effort at reconciliation should be made in the case of marriage breakdown. We have said before, and we repeat it in this motion, that family courts must be structured and equipped with back-up services to make this possible. There must not be a question of confrontation or of courts or tribunals treating the parties as adversaries.
We agree that some marriages are and will be beyond redemption. We must admit also that many of the parties concerned have already set up extra-marital, stable relationships, which the law cannot prevent. We must face this squarely. I contend that this must bring the law into disrepute because growing numbers of people are avoiding the law as being irrelevant to their needs. This puts the children of such unions outside many of the protections of the law with its shameful clinging, even in 1980, to the concept of illegitimacy.
The argument that many people advance against consideration of any form of marriage dissolution is that it will result in ever-increasing marriage breakdowns, but surely that is to stand the whole thing on its head. We are talking now about marriage breakdown in the context of support services to prevent such breakdowns. Surely irretrievable marriage breakdown has to come first, and as we have seen from the evidence we have had in Ireland, a ban of any kind will not prevent that. We have a ban on the dissolution of marriage, but marriages are being dissolved.
I am sure the evidence abroad will be cited. It will be said that there is a growing rate of divorce and marriage breakdowns abroad. That applies here as well where there is not provision for the dissolution of marriage. The fact is that after the initial build-up of pressures for reliefs, the matter settles down, and there is evidence for this in Italy where there was a big demand for marriage dissolution when it was first allowed but the figures have now tapered off. It all depends on the type of legislation that might follow the removal of the constitutional ban on dissolution. It shows little confidence in the people who legislate to put up this kind of argument. It would be up to the framers of the constitutional amendment and of any ensuing legislation to ensure that the whole matter would be under control.
Legal separation is acceptable as a solution to broken marriages in this State. Legal separation is not only acceptable but is compelled by law in some cases, and rightly so, but to stop at that without providing machinery first of all for reconciliation, and, failing reconciliation, to insist that a marriage exists for a lifetime, whether the parties involved have conscientious objections to a dissolution or not, is lacking in compassion and in my view cannot be argued as being in the best interests of the children concerned.
The substitute for marriage dissolution in the law of this State is nullity and a reform of that law is necessary. Reform of the law of nullity would appear to be widely acceptable even among those who would oppose vehemently any lifting of the ban on divorce in this State. Of course reform of the civil law of nullity is long overdue. The attitude of the Catholic Church to the law of nullity is far more humane, more liberal and advanced than that of the State and this leads to a ridiculous situation in which many people whose marriages the church has never considered to be valid are free to remarry but are prohibited from doing so by the civil law which would regard such marriage as bigamous. We have that anamolous situation.
As nullity stands at present, there have not been and there cannot be provisions to make settlements with regard to maintenance, to property and child custody. There are no provisions in regard to succession rights when children are rendered illegitimate.
The motion proposes to liberalise that law, to liberalise the grounds for nullity and to give the courts power to act in regard to the matters of maintenance, custody, illegitimate status and so on. Such provisions are contained in the Attorney General's document published four years ago and in regard to which, incredibly, action has not been taken to date. Legislation to reform this law is needed in any case and is long overdue. In the case of the law of nullity there cannot be any reconciliation procedures. Indeed reconciliation cannot be possible because the whole purpose of a petition for nullity is to prove that a marriage never existed, so it does not lend itself to any framework of reconciliation.
The main issue is that the law of nullity will not resolve the problems of people whose marriages have broken down irretrievably because the basic contention is that the marriage never was from the beginning. Proof must be advanced in nullity petitions that there is mental incapacity, a psychological condition in one of the parties, or whatever. Such incompetence must have existed at the time the marriage was contracted. It needs to be stated that such proof would be impossible to supply in many cases. It is very difficult to establish the onset of mental disorder, particularly in the case of a person who was not undergoing medical care or supervision at the time of the marriage. It might be possible for some people to fit their cases into this category and perhaps people better intellectually and financially equipped would have the edge on others in relation to all remedies in regard to marriage, but I do not think nullity is the solution to the problem.
Anyway, a situation will arise in which two marriages in precisely the same state of irretrievable breakdown will be treated unequally: in one case it will be possible to advance proof that the defect was present at the time of the marriage and in another that it occurred after the marriage, due to pressures within the marriage, due to strains or various social pressures that might have arisen after marriage. The first marriage was null and void and the other never existed. This situation would create feelings of frustration and a sense of unfair discrimination. Both sets of parties see their marriages as being in the same position; however, one has a solution but a solution does not exist in the other case. To those who advance as their argument the effects of this solution on children, I say it is very difficult to isolate one solution from the other. Our main concern in moving this motion is the same concern and compassion for children and people adversely affected by our laws which motivated us to move other amendments to the Constitution in the past.
A decree of nullity would have the same effect on children as the dissolution of marriage through the recognition that marriage can break down due to circumstances which arise in the course of marriage. Separation would have the same effect on children; but my contention is that the conflict, violence and instability of an unhappy home would have a greater effect and detrimental influence on the lives of these children.
With regard to nullity, I should like to quote from page 82 of Alan Shatter's book Family Law:
F. The use of the law of nullity in the marital breakdown situation rather than a law of separation or divorce based on irretrievable breakdown, will only exacerbate the bitterness of the parties and increase their distress. Rather than encouraging them to settle their differences in a dignified and humane manner, it will encourage the assignment of blame and require a finding of fault by the court, thus lessening the possibility of co-operation between the parties in the future. Such co-operation may be essential if the welfare of any children born to the parties is to be secured.
That is a summing up of the situation as far as children are concerned.
Our contention with regard to nullity not being the total solution in a marriage breakdown is shared by people outside the Labour Party. It was included in a submission made by the Women's Representative Committee, a Government Committee comprised of employer representatives, union representatives and representatives of women's organisations, which reported to the Attorney General on the nullity document which issued to him in 1976. Their report in January 1977 had this to say:
There is a risk therefore that people in the same actual situation, that of matrimonial breakdown, will be divided into those for whom the law does and does not provide relief on entirely artificial grounds. If a 10 year old marriage has irretrievably collapsed, it is of little importance to the parties whether the seeds of the collapse can be shown to predate the marriage or whether they arise subsequently. Under the nullity proposals this is of crucial legal importance because unless it can be traced back to the time of the marriage, there is no relief by way of nullity.
This distinction is of comparatively little importance in jurisdictions where dissolution is also available. In Ireland however, there will be many cases where. relief will come in the form of nullity or not at all.
It would be unrealistic not to take account of the fact that this discussion takes place in the context of Article 41 of the Constitution. While this total limitation on the development of other options remains in force, then not only will there be an unjust distinction on technical grounds between cases of similar merit but the law of nullity itself may well fall into disrepute by reason of efforts to force into its sphere cases which clearly involve breakdown rather than invalidity, for the purposes of obtaining relief.
The Committee believes that the constitutional implications for family law reform cannot be overlooked.
The committee further state that they:
... consider that Article 41.3.2º is likewise inappropriate to present conditions.
That is the provision which places a total ban on any dissolution of marriage. It contains a notorious uncertainty, only recently, and perhaps not finally, reexamined by the courts.
The committee say that both of these:
... are huge obstacles which precondition every proposal, governmental and otherwise, on family law. They express with disproportionate emphasis a view of 40 years ago and are an obstacle to mature debate which takes account of rapid and perhaps subtle changes in society.
This is a view which has prompted the Labour Party to table the motion before the House. Recognising the exigency of the issue involved and that it is absolutely imperative in a matter as personal and fundamental to human welfare as this that it should transcend party politics, we advance the solution of an all-party committee. I trust the House will accept our proposal and that the mature debate which the representative committee called for and thought desirable in 1977 can commence from today.
