: Deputy Browne has ten minutes left.
Private Members' Business . - Article 41 of the Constitution: Motion (Resumed) .
The following motion was moved by Deputy E. Desmond on Wednesday, 29 October 1980:
That Dáil Éireann
—recognising the necessity of reviewing the Constitutional prohibition on the introduction of legislation to provide for the dissolution of marriages which have irretrievably broken down;
—recognising that such legislation cannot be introduced without the prior amendment of Article 41 of Bunreacht na hÉireann by the people;
—recognising further that the Constitution should continue to provide effective protection for the institution of marriage and for the welfare of vulnerable family members, and in particular for the welfare of the children of such marriages; and
—recognising the necessity of securing the widest possible measure of agreement for such proposals within the Dáil and the community as a whole, hereby resolves——
(1) That it is expedient that a Joint Committee of both Houses of the Oireachtas be established consisting of——
18 members of Dáil Éireann and
7 members of Seanad Éireann
to report to the Dáil and Seanad on the appropriate form of amendment to Article 41 of Bunreacht na hÉireann to be put to the people for their decision by way of referendum in accordance with the procedures specified by Article 46 of Bunreacht na hÉireann.
(2) That the Joint Committee, previous to the commencement of business, shall elect one of its members to be Chairman, who shall have only one vote.
(3) That all questions in the Joint Committee shall be determined by a majority of votes of the members present and voting and in the event of there being an equality of votes the question shall be decided in the negative.
(4) That five members of the Joint Committee shall constitute a quorum of whom at least one shall be a member of Dáil Éireann and at least one shall be a member of Seanad Éireann.
Debate resumed on amendment No. 1:
1. To delete all words after "That" where it first occurs and substitute "an all-Party Committee of the Houses of the Oireachtas be established to consider problems of supporting marriage and the family under modern conditions, and of family breakdown."
—(Deputy Keating.)
: I was talking about the difficulty experienced in getting this debate on such a very important subject, its meaning in our society and the apparently great fear there is amongst all parties of discussing subjects of this kind which appear to involve questioning the position of the Roman Catholic Church in our society. I was deeply shocked by the categorical refusal of the Government even to consider the desirability of establishing some kind of discussion group on whether there was a need for divorce, which there undoubtedly is.
In 1967 it was agreed to set up an all-party committee which would make recommendations. Their recommendations at paragraph 126 are that it can be argued that the existing Constitutional provision is coercive in relation to all persons. Catholic and non-Catholic, whose religious rules do not absolutely prohibit divorce in all circumstances, that it is unnecessarily harsh and rigid and could in their view be regarded as being at variance with the accepted principles of religious liberties as declared at Vatican II and elsewhere. This was the conclusion they arrived at.
This committee comprised politicians of very long standing, distinguished in their own right. On the Labour side there was Deputy Tully and Deputy Seán Dunne, on the Fine Gael side Senator Dooge, Deputy Sweetman and Deputy O'Higgins, who is now a member of the Supreme Court, and on the Fianna Fáil side there was the then Taoiseach, Deputy Lemass, the present Tánaiste, Deputy Colley, and Deputy Michael O'Kennedy. I would dismiss their recommendation as being silly and unworkable. Deputy Cluskey described them as being sectarian. Of course they were but is it not an interesting thing that sectarian and all as it is, it is an advance on anything that we have at present? Is that not a reflection on all of us in all parties who have not made any attempt to accept the recommendation? One of the most extraordinary things has been the categoric rejection of the proposal about divorce following as fast as it did on the absurd Family Planning Act. Both were a rejection of the pleas of the minority Protestant community that their attitude to both divorce and contraception should be recognised.
On the eve of the election in Donegal there are 8,000 or 9,000 Protestants capable of issuing a rebuke to the Government on this matter in defence of their right. Are these people to continue to play this Uncle Tom role, this tethered goat role in our society to encourage the Protestants in the North to join us, that everything is all right? Why can they not take this opportunity of expressing their repudiation of the Government's departure from the position taken up by the then Taoiseach, Deputy Seán Lemass?
Divorce is necessary obviously in the Republic in order to alleviate to some extent the great distress there is among people. It is also essential to introduce a Bill to seek the deletion of this Article of the Constitution so that we can eliminate as far as we can, as a token of our good faith to the Northern Protestants, the charge that Rome rule is synonymous with home rule. This can be done by the removal of the Article. It seems that there are three types of people who approach the whole question of solving the Northern problem. There are the Provos who simply go in and try to blast their way into a united Ireland. While I understand their frustration and sense of impotence because of our failure down here, I do not share their views. There is a group which take the British position or the passive attitude that everything will be all right eventually and that they will come in of their own volition. Not in a thousand years. The Labour Party take up the position that they are opposed to violence, but there must be something more than that. There must be an attempt to take up the true republican position of a secular pluralist attitude on all social and economic matters. We should take up the position that we believe that this series of matters which seem to reflect the nature of our State, matters like coeducation, interdenominational education, divorce, contraception, the ne temere decree should be dealt with so as to introduce the secular pluralist element of true republicanism into our laws and Constitution. The leader of the Labour Party should, in view of the findings of the 1967 committee and the fact that Labour were represented on it and the categoric statement by them that nobody could object to the need for some kind of divorce laws, now make his position clear to the people who need divorce and to our friends in the North, our fellow Irishmen. He should lay it down—ideally I would like to get it from Fine Gael as well—as an indispensable precondition to the formation of any future Coalition, if he decides to take that decision, that he will agree to campaign on the question of divorce laws and the removal of the ban on divorce. He should insist on the setting up of an all-party committee to investigate the type of divorce laws we should have. In the first instance he should call for the removal of the ban on divorce and specify that he will not enter into any coalition unless that undertaking is given to him by the leader of that coalition. Is he prepared to give that undertaking now? If he was it would be an expression of good faith by himself and his party on this very important issue.
: It seems to me that in the debate on the divorce question so far we may not have pressed the Government as strongly as we should into a necessary defensive position. The difficulty we have in so doing is that, rightly, the Labour Party have placed great emphasis on the need to support marriage. The Fianna Fáil side can also profess to support precisely the same objective but disagree totally as to the best means of so doing. At this stage of the debate I should like to place more emphasis on the denial of human and minority rights on this issue and to stress the degree of individual suffering being caused by the existing law. It is essential in this debate and in the years ahead—it is inevitable that change will come—that the Government should be forced to justify the existing position they support. It appears that all the justification for change is being put by one side, largely by those of us who are arguing for the introduction of divorce.
There is another assumption that we must start from in this debate: that there is a great need to promote stability, harmony and happiness in family life and in marriage here. We must also assume that the role of children is of the greatest importance in such a relationship. Therefore, the question arises: how can the law help? Can the law do anything of great consequence in support of marriage? If it is held that this is so then we must ask what are the limitations of the law in giving such help and we must ask, if we are concerned about measures to promote stability, harmony, and happiness in family life, if the law as it stands does damage to this relationship. I shall address myself to those questions in the course of my contribution.
I should like to stress that there has been a great tendency during this debate, and throughout the country — perhaps it is the occupational disease of legislators — to over estimate the power, influence and effectiveness of the law as a mechanism in promoting harmonious and stable relationships. I have learned as a Deputy for the past 12 years, and as one who has been involved in public life for the past 25 years, that we have to pay far more attention to factors other than the law. We must pay great attention to matters such as housing policy, family maintenance policy and the supportive policies for children in our society. However, for one reason or another we have given specific tasks to the law to assist human relationships in marriage. It is of some importance that this debate should consider some of these specific tasks. Deputy Keating alluded to a number of them. We must now slowly but quietly get to the nub of the issue, the question of divorce.
Firstly, we must consider the question of prevention as outlined in the law. It has been suggested that we should raise the marriage age and that such a decision would be of great assistance. There has been a great deal of discussion and debate on this issue. But I should like to point out that raising the marriage age does not necessarily prevent relationships developing between young people, it does not prevent pregnancies occurring and it does not add greatly to the general betterment of the present situation. It has been suggested by Deputy Keating also that better marriage counselling is necessary. That is a fairly universal panacea for marital breakdown and is not to be dismissed. I accept that there is a need for better facilities and greater State support for the many voluntary agencies involved in marriage counselling and, indeed, I would argue that the State should play a more positive role in this field through our health boards and social work agencies. It is important to accept that marriage counselling can only be of real and measurable benefit where such counselling is voluntarily undertaken by one or other or both parties to a shaky marriage. It is also important to point out that those who are most likely to need marriage counselling are those who are least likely to avail of such a service.
Another specific task given to the law is the warding off of certain threats to marriage. There is a proposal before the House dealing with civil action for adultery. Presumably the purpose of that legislation is to discourage potential adulterers in Irish society. However, I believe it is unlikely to be successful because for any deterrent in law to work it must be credible and it has to be directed to real as opposed to imaginary threats to marriage. Adultery, in my opinion, is often a symptom rather than a cause of a broken relationship. Civil action on the part of the State is unlikely to deter a person in this regard because its operation would have to be highly selective and would have to be directed against highly emotive conduct which is unlikely to be affected by a threat of selectively imposed sanctions.
The third specific task which has been given to the Dáil — here I come to the question of divorce — in the Constitution is the placing of marriage in an institutional, constitutional and legislative straitjacket. That is the way we have decided to protect the role of marriage in our society. In essence this means that we have a ban on divorce and a statutory ban on remarriage. There is a simple, direct and crude attempt to prevent fragmentation of marriage. It is an attempt by using the straitjacket of the constitutional bar to lock the parties directly into a marriage. By virtue of there being a constitutional bar Dáil Éireann and the State have proceeded to throw away the key. I submit that the vast majority of legislators and legal opinion cannot be convinced that that is an effective solution. If any Deputy wants to read one book on this matter perhaps he would read William Duncan's publication, The Case for Divorce in the Irish Republic. This gives an objective and, to me, thoroughly convincing explanation of the total inadequacy of the situation.
Among the reasons why the present situation does not work is the fact that in Irish society there is an increasing incidence of marriage breakdown and a total absence of any legislative framework, as the Taoiseach knows well, to cater for this situation which is causing and will continue to cause the greatest personal hardship to individuals and will cause ever greater hardship for young people because we refuse to do anything about it.
The compulsion of the Constitution on this issue and the prohibition on remarriage are not a good basis for the development of personal relationships between people. If I were a sociologist I would argue that it is anything but a good basis. The Taoiseach talks about not coercing anyone in Northern Ireland but, in his own constituency, he is coercing people to live together because they have no hope of living otherwise. To me that is political hypocrisy of the first calibre.
Even worse is the fact that coercion is not just related to society but it is related in particular to women. There are thousands of women in that situation and they can earn only 60 per cent of their husband's income because we have not got equal pay. Generally they are not in employment when they are married and in many cases they are economically dependent on their husbands. They are locked into that straitjacket. Whereas both parties are locked in, very often the woman involved in a marriage breakdown is doubly locked in. Therefore, a change should be made.
Where the law does not reflect what is possible in many human relationships, namely, where it imposes impossible constraints and ideals, the tendency will be for the law to be evaded, avoided, abused and ultimately treated with contempt. In future there will be less respect for the marriage laws. That is not in the national interest and it is not in the best of interests of the people of Ireland. Because the law places an impossible burden on marriage relationships, we have examples of evasion such as despairing resort to Church annulments, with all the anomalies that entails and all the hypocrisy which surrounds that, the possibility of getting a Church annulment but not being entitled to remarry. There will be resort to divorces outside the jurisdiction of this so-called Republic within the EEC and, of course, an increase in stable and unstable relationships outside marriage. We have the tangled web which is already a product of the existing law and is proving an increasingly serious threat to family life. The non-recognition by the State of second stable relationships places very many individuals, especially the children of such marriages whom we are supposed to cherish, in a very vulnerable position.
Such being the nature of politics, I suppose it would have been somewhat unrealistic for us in the Labour Party to anticipate that Fianna Fáil would support our call for an all-party committee to consider the introduction of a referendum on the question of divorce. Is the Taoiseach so assured in his mind that he denies the Irish people the right to decide? Apparently so. However, I might have expected something better from Deputy Doherty, the Minister of State. Deputy Síle de Valera may not have cleared her script about the H blocks, but surely the Minister of State at the Department of Justice should have cleared his script on divorce with the Taoiseach. His speech was an indifferent, dismissive approach, probably written by some public servant in the Department of Justice, who gave the statutory response to the Minister, who swallowed it hook, line and sinker and then trotted it out in this House.
Unfortunately, tonight most Deputies in the House are preoccupied with the by-election in Donegal or the Presidential election in America. Many people whose marriages have broken down irretrievably and irredeemably are getting scant concern from the vast majority of Deputies. In this statement to the House last Wednesday evening the Minister said he thought divorce would bring much greater and widespread suffering and social disadvantage. That was a bald statement. May I ask the Minister to provide the House with any detailed information, any sociological research or social investigation, even by way of a discussion document, his Department or his party have carried out on this problem? Is there any discussion document on this issue available from the Law Reform Commission? Apparently not. They are precluded from considering the issue.
The Minister went on to stress the importance of family life and as his pivot point he stressed the fact that it is the basis of our community as enshrined in Article 41 of the Constitution. He failed, as did the vast majority of Deputies on the Government side and indeed quite a few on the Opposition side, to appreciate that the Constitution is extremely selective in what it means by "family". Where a couple are married they and their children have the full protection of our Constitution, but if either of the parties were previously married and decide to remarry, under our Constitution that protection disappears. In effect, that means that should this couple have any children, they do not have the protection of Article 41 of the Constitution, and this in an allegedly Christian society.
Indeed, one might ask why the Government have not made any effort to find out the extent of this problem. I might even ask why the Government refused to include the category separated in the 1981 census form. I have pleaded with the Taoiseach and the Minister of State at least to make an effort to find out what is going on. The former Taoiseach gave a specific assurance to the group concerned that the change would be made, but he was scrubbed out of office by the present Taoiseach before he had an opportunity to do so. Surely before the Government speak with authority on this issue they should make themselves familiar with the extent of the problem, or do the CSO mandarins rule the roost completely and decide what goes into a census form and what does not?
I will not pursue this because I believe we have the sympathy of the Taoiseach on the matter. I raised the matter twice at Question Time and I am raising it again now. It is not unfair to say that among all the leaders in the European nations we have strong elements of moral cowardice in the political field, but on the question of divorce we in Ireland remain unique in our capacity to lead Europe. Fianna Fáil concede that thousands of marriages here do not exist any longer in any form or definition. As the Taoiseach well knows, and as his Ministers know, as Deputies on all sides know, there are marriages here which have ceased to have any spiritual meaning, any personal meaning, any physical meaning whatsoever, any custodial meaning, any meaning in terms of emotion, in terms of family income, maintenance, or any form of supportive concept in respect of any kind of human relationship.
One can have a husband in prison for battering his wife and children. He can later go off to the UK and not be seen for 20 years. That marriage does not exist, yet that woman may not remarry. So we determine, in our self-righteous protection of the Irish Constitution. A man may even have gone to England and bigamously married another woman, yet no hope whatsoever is held out for the spouse left at home. Despite clear acceptance that such marriages are irredeemably terminated we in the Republic continue to proclaim their existence. Therefore, I suggest there is a great deal of double talk and hypocrisy surrounding the question of divorce.
On this question of hypocrisy, one need only talk in the bar of this House or in one of the restaurants here and to a cross-section of Deputies, one need only meet them at a by-election hustings and talk about problems which all of us face in our daily constituency work, and in a substantial majority such Deputies will concede that there should be a change in the law to introduce termination of marriage. But in public they are abject, they will not in any circumstances accept that they should make a change. I am glad the Taoiseach has joined us here because he is a man of great political experience, a man of the world. Nobody knows as much as he and I do about the reality of this position. We should not be in a position of fearing for our political future and then run away like frightened political goats from honest and frank debate on this issue.
So far the only response of the Government has been the introduction of a so-called Adultery Bill. Suffering God, is that our only response? Is this yet another Fianna Fáil Irish solution to an Irish problem?
: Which Bill is the Deputy talking about?
: If Hugh Leonard wants to write another play he has a rich source of material. In this Adultery Bill a situation can develop where children will see their parents dragging each other through the courts to establish that one of them is a bigger adulterer than the other, all for monetary gain, because of a change in the law. I doubt if anybody in this country believes that people who do not particularly avail of divorce should in any way be made to avail of it. Divorce is not a cure for marital breakdown, but it is the most humane, most Christian, most sensitive response to the human and social exigencies of that situation. As a married man and as a Catholic I believe that. I am firmly convinced of it and I am prepared to argue it with clerics, sociologists and fellow politicians, because if we believe in something we should say it and not dodge behind the columns of lobbies here to avoid our responsibilities. Without speaking frankly on such issues political life becomes a sham with which I would prefer not to have anything to do; I would prefer to go out and dig ditches because it would prove to be more productive in the national interest.
The legislation we advocate here is a basic human right, and a responsible Government has not got an option to making it available. In doing so the religious beliefs of everybody in the community and those whose consciences would not allow them to avail of divorce would be fully respected. I was a member of an all-party committee—not the Mickey Mouse one of 1967 with the sectarian amendment Deputy Noel Browne has referred to here — on the implications of Irish unity and I remember some skin and hair flying when the late Cardinal Conway assured members of Fianna Fáil, Labour and Fine Gael that he would have every pulpit in this country speaking against us if we dared to recommend a change of the law relative to divorce. He was informed by some solid and respected members of Fianna Fáil that no religious or political body in this country had an exclusive veto on issues of human rights.
This is not an area on which either the religious authorities or indeed the civil authorities have a right to exercise veto. Therefore I strongly believe that while divorce is in no way going to solve all marital problems it will at least put an end to the social anomaly of refusing to allow persons to live with normal human dignity, of refusing persons to remarry and refusing to legitimise the children of second unions.
Therefore, in conclusion, if the State's goal is to promote and support family life and marriage it is high time that we learned the lesson that formal legal rules and constitutional principles are less likely to have effect than the development of social policies, the development of sensitive legislative statutes and above all economic policies such as housing, health, education and child care designed to bring about conditions favourable to the family in society, to the health of all families, to the welfare of all families, to the stability of all families and ultimately to rewarding human relationships at all levels of the family and society. Even in one parent families where divorce has occurred this is possible.
For that reason I strongly support the motion introduced by my distinguished colleague, Deputy Desmond, whose humanity and sensitivity is well known. Lest we claim an interest, we are not related; but I am proud that someone of my name has shown such courage and persistence on this issue in recent years. This is another reason why I am honoured to have the opportunity of seconding the motion.
: I shall address myself to the Fine Gael amendment which is before the House. This seeks the establishment of an all-party committee to consider the problems of supporting marriage and the family under modern conditions and marriage breakdown. The text of the amendment we have put down is broader than the original motion and deserves the support of the House. No public representative can be but conscious of the many pressures under which families are living in modern times. I am sure we have all had many wives coming to us seeking representations for income, protection from husbands and protection for their children. It is sad to see that the numbers coming forward to seek public help are increasing at a rapid rate. It is in the spirit of seeking to examine the causes of marital problems and marriage breakdown that we put down this amendment.
The attitude of the Minister of State in replying to the motion and amendments is nothing less than hypocritical. What has been sought in the motion and in our amendment is that an all-party committee of the House be established. It is urgent and vital that this Dáil should address itself to this very difficult and personal area of law. Article 41 of the Constitution is quite specific in saying that no law shall be enacted for granting the dissolution of marriage. I have no doubt if a referendum was held on this issue as of now an amendment to the constitution would be defeated and there would be no popular support for it. That would be the case because there is not a sufficient body of evidence or a report available to put before the electorate. As of now I am sure Fianna Fáil in their narrow-minded, regressive fashion would go off on the hustings, fight the amendment and in all probability win. In doing so what would they achieve other than an election victory? What is needed is a body of elected Members of Parliament to sit down and examine the problem in a serious fashion and come up with recommendations to the House not only in relation to divorce — to highlight that would be unfortunate — but in relation to support for marriages and for the family unit which is seen as being the most important unit in the State. For the Minister to come into the House in such a dismissive and negative manner is nothing less than shocking. It shows his lack of insight into the serious social problems present in society and the tendency by the Government to run away from problems rather than to tackle them. That is unfortunate. The Labour motion, put down seriously and in light of policy, should have been treated seriously by the Minister and the Government.
The tendency to marry at a young age should be discussed. The minimum age should be examined. Many marriage breakdowns we have witnessed, especially in the last few years, have resulted from very early teenage marriages. They are young boys and girls who are ill-prepared, ill-informed and extremely immature. We should look at this area with a view to increasing the minimum age. It is far too serious an event to allow it at an early age. I know the Church is very concerned about this and is trying to encourage marriage courses and that a certain period be established before a marriage takes place. It is a serious problem which could be looked into by an all-party committee. It is something the Government cannot ignore or run away from.
There is need for greater education in schools about marriage, the child growing up, maturing and taking his place in society and at the head of a family or, in the case of a girl, as the wife and mother of children. Our school curriculum at second level does not allow for an in-depth study on this important question. The emphasis on examinations, which I deplore, sweeps aside the time that could be given for courses for the young boy or girl on taking his or her place in society. However, we are very lax in this area about informing our young children as to the role they can play in life. It is here in very basic education that we can do much for young children. We can imbue them with a greater understanding of the laws of the State under which thy live and their role in society upon leaving school, yet practically nothing is done in the school to prepare children for adult life. That is very sad. It should be discussed and can be remedied.
The role of the welfare officers of the health boards in the country is something which I would like to praise. In my constituency there is an excellent service under the health board for the aid of distressed mothers and housewives, and it is being run on very small amounts of money with great confidence and sympathy. I have nothing but praise for the many welfare officers who have become involved at a very practical level. This is not just an academic exercise here this evening. I am talking about a very practical area. Welfare officers in the welfare service are doing especially good and sympathetic work and their role should not go unmentioned.
There is, of course, other law at the central Government level which allows support for distressed or separated wives and that is as it should be, but it is not adequate. The moneys payable to deserted wives is small in the extreme and we should have a radical look at this whole area with a view to evolving a comprehensive service especially for deserted wives who are trying to rear children on a very small income indeed. Although in our welfare services we cannot but be proud of the level of commitment to those deserted wives with young children, they get very small money indeed and but for the supplementary support which they get from the health boards they would be very badly off. I can say that they are poor people who are not being treated as well as we should treat them.
The present position relating to marriage is extremely difficult for the layman and as a layman I admit that the whole area is difficult even for me to understand. The question of the civil dissolution and civil legality of marriage is one area that is confounded by the whole attitude of the church to annulment and re-marriage. There has been quite a departure from the church position in civil law. Certainly the civil practice in our neighbour country and countries in Europe differs greatly from the practice in Ireland in relation to the civil status of marriage, divorce, annulment and so on. At the moment the question of the children seems to take second place, and that is most unfortunate. Of course, that also applies perhaps even more so in relation to church law. The whole area needs to be examined expertly and that can be done only by an expert committee, a committee of the Houses of the Oireachtas. I am very sorry that the Government have run away from this very important and delicate area. They have stuck their heads in the sand and are not prepared to take the issue seriously. Many informed people will not look kindly on the Government position in relation to this question of the establishment of an all-party committee. Many genuine, honest-to-goodness men and women are suffering because of the present situation in Ireland. That the Fianna Fáil Government are refusing to have anything to do with an all-party committee smacks of hypocrisy and cynicism.
: Hear, hear.
: It is very sad indeed that they have taken such a narrow line on this vital issue. I can only appeal to the other members of the Government to have a look at this again. Obviously the Minister here tonight is not capable of doing so or of becoming involved in this issue. We are not talking about anything other than the establishment of an all-party committee of the Houses of the Oireachtas, something that commends itself to me. I can only say that I am bitterly disappointed with the Government position on this matter. Little can be said that has not been said by previous perhaps more knowledgable speakers as reported on the record of this House. I do not wish to repeat it, but the attitude of the Government is extremely disappointing and will be seen by many people to be unfortunate and very sad at this time of great pressure and stress on married life in Ireland.
: In this matter, as in so many others in this country, there is one law for the rich and another for the poor. Before I talk about that I wish to draw the attention of the House, and through the House that of the wider public, to some of the issues concerned with the Constitution. There has been a lot of muddying of the waters in relation to what this House has or has not competence to do in relation to divorce. It is assumed by well-meaning people who are either for or against divorce that all we have to do in this House is to pass a law and divorce would be available in the morning. These people fail to realise that the Constitution which we are discussing at one remove under this motion of the Labour Party was framed and devised by a very skilful political mind. It is a Constitution which not only allows the Irish people, but restricts to the Irish people as a whole in this State, the right to change the provisions of that Constitution. The man and the Government who drafted that Constitution, however, were not so careless as to leave a situation in which the Irish people could change their Constitution whenever they wanted to. No. The Irish people were going to be allowed to change their Constitution only when a majority of Members of the Dáil and Seanad decided that they should be given the opportunity of changing it. We in the Labour Party benches believe in the necessity for the provision of civil divorce proceedings in circumstances in which marriages have broken down irretrievably. However, in a sense that is not even the issue here tonight. The issue here tonight is whether the Irish people should be given an opportunity of saying the same thing. If they do not agree with us in the Labour Party by deleting or by substituting another provision for the relevant subsection of Article 41 of the Constitution, then we are all back to square one.
What opposition to this motion means must also be made quite clear. It is plain from what the Minister of State told us last week, that there will be mass opposition from the Government benches to this motion. Opposition means that the Government party effectively are denying to the Irish people the right even to express an opinion of whether the provision of our Constitution relating to civil divorce should be changed.
We all know that in a democracy one cannot consult the people by way of referendum on everything, although, God knows, there are occasions when one would like them to be consulted. One cannot consult them on the annual budget or on the level of taxation. To try to run a country like that would make it absolutely ungovernable but there is written into this Constitution the underlying assumption that the electorate as a whole have the right to be consulted about fundamental matters which affect the Constitution and their lives.
We believe this is one of these occasions when this consultation machinery should be adopted. Let there be no doubt about it. If a decision is ever taken to put this to the people by way of referendum, to clear the decks so that an appropriate divorce law can be brought into this House, I and other Members of the Labour Party will be making our views felt on that occasion. The sad fact is that not only have the Government decided to vote against it on this occasion, but, to listen to what the Minister of State said here last week, they have set their collective and stony face totally against it. The Minister of State made it clear that the Government were opposing this motion totally lest there be the slightest shred of ambiguity in people's minds about the possibility that divorce legislation might ever be passed by this House.
I find that degree of refusal to face facts extraordinary because the Minister must know, as we know on these benches and as I have no doubt they know on the Fine Gael benches, that the provisions of our Constitution will be changed and that laws providing for civil divorce will be introduced and passed by the Dáil and the Seanad at some date in the future. The question is not whether but when.
We also know that the main motive force behind that move for change, that move for appeal, when it comes will not be the misery of the thousands of people who suffer under it now, but the greed of the people who at present can afford to get foreign divorces, who can afford to arrange their matrimonial affairs in such a way that the laws of the State impinge little upon them, when they discover into the second and third generation that even though they may escape in their personal lives the consequences of the absence of divorce legislation, they will have serious difficulties in passing on their accumulated, no matter how ill-gotten, gains to their offspring.
It is this power, the power of resources, of wealth, which when it finds itself blocked will be leaning heavily on the shoulders on the leaders of political parties like Fianna Fáil to get them to change a law that three, four, five or ten years before they had said was unchangeable. It is when that pressure builds up that the pressure will become effective. In the meantime the misery, suffering and lack of an adequate home life and all the problems associated with marital breakdowns will continue for those without the resources to escape the penal consequences of our present system of legislation, without the resources to travel abroad and spend the six or eight weeks in Las Vegas, to establish fake domicile in Britain, to do any one of these things which are at the moment the convenient backdoors through which they can escape from the provisions of our present laws.
We in the Labour Party put down this motion now not just because we do not ever get, and would never want, support of that group in our society but because we believe present problems demand present remedies. To sit on our collective behinds and wait until the pressure builds up to the point at which a Government's political skill is deemed not to be in danger is a fundamental act of political cowardice.
The case can be made — I noticed the Government did not make it but I am sure among their benches there are people who would make it — that there is a relationship between divorce and marital breakdown, that if you allow civil divorce legislation, assuming always that the Irish people would consent to change the Constitution, this will open the floodgates to every manner of abuse and immorality. We ought to be mature enough at this stage of our national development to reject this absurd domino theory of morality. Of course there is a relationship between marital breakdown and divorce but it is the other way round from the way it is sometimes presented to us. Divorce is not a cause of marital breakdown; marital breakdown is a cause of divorce. Unless we learn politically to put the cart and the horse in the right order we will never have serious debates on economic or social issues in this House.
Another point we should be aware of, and this is one on which we on these benches set particular store by, is this: divorce is not a remedy for marital breakdown. It is not a cure for the problem of marital breakdown. It is a recognition of the fact that marriage can and does break down and of the need to provide, if necessary, a new relationship for the welfare of adult men and women and of growing children. This party have for several years now adopted that policy but they do so in a much wider social and economic context because this party, more so in every respect than the Government party, would also argue very strongly that the causes of marital breakdown are not to be found in the provision of divorce — God knows there is marital breakdown enough in the country and no divorce is in sight — but within the social and economic pressures which bear on all married couples, and upon younger married couples in particular as they start out on their married lives.
We know, and we have more reasons to know than most, the kind of social and economic policies which are created, for example, by the Government approach to housing which refuses local authorities funds to build enough houses for people who are forced to live with in-laws, in caravans, in mobile homes, in conditions of indescribable squalor up and down the country. We know, too, of the bad planning — and here, perhaps, the blame is to be somewhat more widely shared — the type of planning that breaks up city communities, which condemns young people to spend their married lives removed from the extended family, consigned to vast dormitory suburbs outside the centres of our cities with few social amenities, few recreational facilities and an exiguous transport service to bring them back to the areas in which they grew up.
We know, also, of the social pressures that are placed on everybody, but not least on young families, by the social crime of unemployment and by the feeble attempts, of this Government especially, to cope with that problem. We have a situation today in which the best part of 250,000 children live in families who are dependent on assistance from the State in one form or another so that they might have enough bread to eat in the morning and who is to say that they even have that much. Those in this House who are comparatively and comfortably well off and who intend voting against this measure this evening should examine their consciences and ask themselves if their marriages would be as comfortable or as happy or if they would be so well off if they were part of one of those families who are dependent on social welfare benefits, on social welfare assistance, on disability benefit, on the deserted wives allowance or on unmarried mothers allowance. If, after such examination, the conscience of any such Member is clear, let him vote accordingly.
We are not simple issue politicians. We do not regard divorce as a solution to the problem of marital breakdown. We seek the provision of civil divorce, including the right to remarry where remarriage is required, as part of an overall social and economic policy which is designed not only to tackle the symptoms of the social problems that we encounter today but also to attack in a more fundamental way the underlying economic base and root problems involved. We are aware that the problem of marital breakdown will be with us for as long as there is marriage but our social and economic policies, above all, are of a kind which are destined to make those problems much less of a reality than they are. But in so far as there are problems, they must be met and unless we meet them now we will stand accused, and rightly so, of running away from them.
In a more mature assembly than this, the Government of the day faced with the undoubted division in their own ranks, might have the level headedness to allow their members a free vote on this issue and when I refer to this issue I must remind myself that all we are trying to decide on this evening is a proposal to set up an all-party committee to recommend a revision of the Constitution to allow our people to make up their minds. However, the Government party are never a great party in the context of a free vote. I recognise that there are reasons for that but there is another option open to the Government and I am surprised that they have not adopted that other option. If they are incapable of allowing a free vote to their own people, let them abstain on this issue. If they cannot solve the problems and the internal disagreements within their own party other than by putting on the whip to vote against, which is the softest option of all, let them abstain and let those Members who are willing to vote decide the issue so that the committee can be set up and set about their work.
The Taoiseach stated publicly following his meeting with Mrs. Thatcher that there was no support for divorce in the Republic. However, the ESRI survey in this regard indicated that almost half the people who replied were in favour of such provision. But on this side of the House we are not interested only in counting heads, important though that may be. We are interested in the fundamental issues that are involved here and which cannot be solved totally by the counting of heads. So far the Government have refused to face this fundamental issue and until such time as it is faced it will not go away.
: May I say at the outset that I deeply regret the attitude adopted by the Government to the motion before us tonight? It is an attitude which derives, not from a principled evaluation of the measure proposed, but from a cruel and heartless pragmatism which serves neither the interest of those who have genuine conscientious objections to amending Article 41.3.2º of the Constitution, nor of those, like myself, who believe that natural justice, for reasons I will outline, requires this House to rectify various anomalies in the law relating to marriage.
In a radio interview last Thursday, the Minister for State at the Department of Justice made the Government's position on the matter quite clear. In summary, it is that the Government are not, in principle, opposed to the enactment of legislation to provide for the dissolution of marriages which have irretrievably broken down. The Minister, indeed, went so far as to imply that he foresaw a time when such legislation could be enacted as demand for it grew. He felt, however, that the time is not yet ripe for such a measure, irrespective of the injustice currently imposed on tens of thousands of men, women and children by the present legal position.
That is an attitude which brings this House and the whole political process into disrepute. The politics of pragmatism has no place in a debate on a matter of such profound importance to so many in our society. I have respect for those who conscientiously hold views different from my own on this matter and who genuinely believe that the enactment of legislation which would allow for divorce, no matter how tightly restricted, would constitute a greater evil than that which currently exists. Those views deserve respect because they are conscientiously held. I can have no respect, however, for a Minister or for a Government who have no philosophy on the matter and whose position is determined simply by an assessment of where the majority of votes currently lies. That is a discreditable form of politics which, followed to its logical conclusion, would preclude the enactment of any legislation to cater for the rights of minorities.
The strength of a democracy rests on its willingness and ability to respond to the rights of minority groups. When those rights are infringed an injustice is perpetrated, not only on the minorities concerned, but on the whole of our society.
It will be remembered that all parties in the Oireachtas have already recognised the validity of this argument as it applies to the issue of the dissolution of marriage. The Report of the All-Party Committee on the Constitution, published in 1967, recommended that Article 41.3.2º of the Constitution should be amended to permit the enactment of marriage laws acceptable to all religions. Here the committee were facing up to the fact that the Constitution, in its present form, discriminates against religious minorities whose religious beliefs do not preclude the dissolution of marriage.
The committee proposed an alternative formulation of Article 41.3.2º which took account of the rights of religious minorities. In doing so, the members were clearly seeking to see to it that one set of minority rights on this issue were respected in our Constitution, a requirement which persists to this day. It is now 13 years since that recommendation was made by respected Members from all parties in this House. Following the passage of time, most Members of the Oireachtas would not now agree with the particular formulation proposed by the all-party committee, since, in a fundamental way, it would reinforce sectarian values in our basic law. Yet, inadequate though that particular formulation was, and it must of course be seen in the context of the time it was proposed, it recognised the rights of religious minorities. The Government today are not even prepared to go that far. Instead, they stand over a Constitutional provision which discriminates against those who hold minority religious views, while simultaneously mouthing their traditional cliches concerning national unity.
It should be remembered that one of the main motivations behind the decision to set up the all-party committee was to explore ways in which the Constitution could be amended to ease the path to reconciliation between both parts of this island. The Oireachtas then, if not now, recognised that the eventual achievement of national unity would require that we make changes in our laws down here to accommodate the views of the Northern majority. That of course was a correct assessment of the position. Thirteen years later we have reverted to the point where no concessions at all are being made to the legitimate views of Northern, or indeed Southern, Protestants. Following tonight's vote, the Taoiseach's first political priority will be seen by them for what it is—an empty cliché, signifying nothing except an appeal for support to Fianna Fáil's traditional political heartland. This party are not and never have put forward the argument that our Constitution should be changed solely to accommodate or appease people in the North. We claim in the past and now that our Constitution should be changed because it is right to change it.
The need for a re-examination of the law in relation to marriage arises for reasons more generalised than those I have mentioned. We must, I believe, face up to the reality that some marriages do and will continue to break down irretrievably, often despite the best efforts of the persons involved. We must face up also to the reality that sometimes the best interests of the children of a broken marriage would be served by a dissolution of that marriage.
The reality of the failure of some marriages is already recognised in our law. It has long been accepted in this country, as a matter of common sense and common humanity, that where a marriage fails completely the law should not only allow but, in cases where protection is needed, compel a couple to live apart. Indeed, greater awareness of family violence has led in this as in other countries to a strengthening of the courts power to order separation. It is recognised also in our social welfare code in the sense that deserted wives and their children are legally entitled to an income from the State subject to certain conditions.
In addition, our civil courts and ecclesiastical tribunals recognise the concept of marriage annulment. In 1978 there were 825 applications for annulment to regional marriage tribunals of the Roman Catholic Church. Desertion, legal separation and civil annulments of marriages are, therefore, recognised entities in our civil law at present. These are not at issue in this debate since they are already a part of our social reality and our legal system.
What is at issue is the right of those whose marriages have irretrievably broken down or been annulled in ecclesiastical law to remarry. At present, only those whose marriages have been annulled in a civil court may contract a second marriage. Those who have received ecclesiastical annulments or who are legally separated or deserted may not do so. What is more, the children of annulled marriages are classified as illegitimate.
None of us, surely, can feel gratified with this situation which amounts to a denial of the civil rights of a significant proportion of our population. Surely, those whose marriages have irretrievably broken down or whose marriages have been annulled by ecclesiastical tribunals have a right in justice to remarry, should they so wish. Natural justice alone would suggest that they have that right.
In facing up to this matter, the Labour Party does not assert that divorce should be made easy or should become commonplace. A primary obligation of the State must be to support the institution of marriage with all the means at its disposal. It has, in this sense, an obligation to ensure adequate housing, income and employment for all families. The lack of one or all of these essential requirements is placing impossible strains on far too many families at present and will continue to do so as long as current economic policies are pursued.
Secondly, we need to dramatically improve family support and marriage counselling services to assist families in difficulty. Lip service to the value of marriage by politicians who do not provide either the economic environment or support services to encourage families in trouble amounts to nothing more than monumental hypocrisy.
Thirdly, and only when marriages appear to have broken down irretrievably, applications for a disolution of marriage should be heard in family courts, one of whose functions should be to attempt to effect a reconciliation before a final decision is made. The proceedings in family courts should be based on the objective of reconciliation and the adversorial format, which is used in some other countries, should not be condoned here.
I believe that the proposals which other Labour speakers and I have outlined during the debate on this motion constitute a humane and civilised response to the needs of many thousands of men, women and children in our society today. We have faced up to the fact that the law relating to marriage must take account of social realities.
In the end, we cannot legislate for good marriages. We have an obligation to encourage marriage and to support it by every means at our disposal. We do not do so adequately at present. But when a marriage breaks down and when the best efforts of enhanced social services cannot recreate a stable relationship, then justice requires that we allow the couple concerned to have their marriage dissolved. I believe that they and their children are entitled to expect no less from this House.
Some people have suggested that the motion by the Labour Party will only have negative effects. In fact, in speaking to the amendment put in by Fine Gael, members of that party have spoken of support services for marriage. Our approach to this problem in our society is well known. Nobody from any side of the House has suggested that it is not a very serious problem for many thousands of our people. We have approached it in a realistic and a humane way. We have at all times, including in the terms of the motion before the House in our name, tried to emphasise the importance of the marriage state and to ensure that full effect is given in practical terms to its importance by the State.
Many marriages which are now irretrievably broken down would not be so except for the fact that we run our economic and social affairs in the manner in which we do. How many of us have gone to our political clinics and have had young men and women coming to us whose marriages could have been successful if they had decent homes in which to live together? How many of us have sat across the table from a young girl with two or three small children dragging out of her, pouring out her heart telling us that it was impossible to get her marriage off the ground because she was forced to live with his people or he was forced to live with her people? In many cases they were forced because of the lack of a basic right — a home of their own — to live apart. The economic system has caused the irretrievable breakdown of many marriages. We cannot continue to inflict two wrongs on these people.
Amendment put and declared lost.
: I must call for a vote to clarify any ambiguity.
: The motion is lost. We cannot vote on a motion that is lost.
: We should have a division on this for the public record.
: No.
: The Minister had an opportunity to speak but he did not do so.
: Does Deputy Browne wish to move his amendment?
: I move amendment No. 2:
To delete all words after "Dáil Éireann", and insert "implement the unanimous recommendation of the 1967 all-party Oireachtas Committee on the Constitution in paragraph 124 that the Constitution be suitably amended, in order to permit for the introduction of a law allowing for divorce in the Republic."
: Will Deputies who are calling for a division rise in their places?
Deputy Browne rose.
: The amendment is defeated without a division as fewer than ten Deputies have called for a division. The name of the Deputy who has risen will be recorded in the journal of the proceedings.
Motion put.
The Dáil divided: Tá, 15; Níl, 62.
Tá
- Bermingham, Joseph.
- Cluskey, Frank.
- Corish, Brendan.
- Desmond, Barry.
- Desmond, Eileen
- Horgan, John.
- Kavanagh, Liam.
- Lipper, Mick.
- O'Connell, John.
- O'Leary, Michael.
- Pattison, Séamus.
- Quinn, Ruairí.
- Ryan, John J.
- Treacy, Seán.
- Tully, James.
Níl
- Allen, Lorcan.
- Andrews, David.
- Andrews, Niall.
- Aylward, Liam.
- Barrett, Sylvester.
- Brady, Gerard.
- Brady, Vincent.
- Briscoe, Ben.
- Browne, Seán.
- Burke, Raphael P.
- Callanan, John.
- Calleary, Seán.
- Cogan, Barry.
- Colley, George.
- Collins, Gerard.
- Connolly, Gerard.
- Cowen, Bernard.
- Crinion, Brendan.
- Doherty, Seán.
- Filgate, Eddie.
- Fitzgerald, Gene.
- Fitzpatrick, Tom. (Dublin South-Central).
- Fitzsimons, James N.
- Flynn, Pádraig.
- Fox, Christopher J.
- French, Seán.
- Gallagher, Dennis.
- Geoghegan-Quinn, Máire.
- Haughey, Charles J.
- Herbert, Michael.
- Hussey, Thomas.
- Keegan, Seán.
- Kenneally, William.
- Killeen, Tim.
- Lawlor, Liam.
- Lemass, Eileen.
- Leonard, Jimmy.
- Leonard, Tom.
- Leyden, Terry.
- Loughnane, William.
- Lynch, Jack.
- McEllistrim, Thomas.
- Meaney, Tom.
- Molloy, Robert.
- Moore, Seán.
- Morley, P. J.
- Murphy, Ciarán P.
- Nolan, Tom.
- Noonan, Michael.
- O'Connor, Timothy C.
- O'Donoghue, Martin.
- O'Hanlon, Rory.
- O'Kennedy, Michael.
- O'Leary, John.
- O'Malley, Desmond.
- Power, Paddy.
- Reynolds, Albert.
- Tunney, Jim.
- Walsh, Joe.
- Walsh, Seán.
- Wilson, John P.
- Wyse, Pearse.
Tellers: Tá, Deputies B. Desmond and Horgan; Níl, Deputies Moore and Briscoe.
Motion declared lost.
The Dáil adjourned at 9 p.m. until 10.30 a.m. on Wednesday, 5 November 1980.