Family Law Bill, 1981: Second Stage (Resumed).

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

Deputy Keating is still in possession.

I was outlining the deficiencies which I believe are justifiable of mention in respect of the Family Law Bill. I will just mention briefly the areas that I think are particularly important — the question of education for marriage, adequate pre-marriage and post-marriage counselling, a whole realistic approach to the economic aspects of marriage, the question of a minimum family income, the question of an early warning system both for brutality in respect of children and indeed for marital difficulty itself and the encouragement of counselling and the provision of counselling resources to deal with that, the dismantling of the negative attitude that exists in respect of counselling, the possibility of curricular change in the schools to include reference to marriage——

The Bill is reasonably limited. I am afraid the Deputy is getting rather remote from it.

I will not delay on it but I stress that a Bill that purports to be a Family Law Bill is appropriate for comment on omissions where it is reasonably open to the conclusion that they should be included.

It is only dealing with one matter and we must keep reasonably close to the contents of the Bill.

Then it should not be called a Family Law Bill. That is the point. You cannot have it both ways.

The Chair has no discretion as far as the title of the Bill is concerned.

If the Chair would bear with me for a moment. I am not going to spend more time than is essentially necessary on differences that the Chair might consider peripheral.

The question of legal aid is important. We dealt in detail with family courts and family tribunals on the Courts Bill and I will not go into it again except to say we still find that marital disputes are being settled by the courts. This is a completely inappropriate forum. Other aspects of legislation relating to the rights of all the family and the question of income and property — I include the children here, who are not just the property of parents but are human beings in their own right — relate to family law and there is no suggestion in this Bill that we will hear any more about any of those matters at any time.

This Bill is misnamed. It is not a family law Bill. The purpose of this Bill is to eliminate certain aspects of family law and update others. Many of them are largely irrelevant matters of family law. Concern for the family and understanding of the family is at the kernel of this Bill. What exactly do we mean when we talk about the family? What are the areas we should be looking at apart from what is in the Bill? There are a number of valid comments one could make arising from the literature in this area that has been produced over the years. I will refer briefly to one or two of them. The papers in relation to a conference on the family, which was held in Kilkenny are published inSocial Studies, volume 2. No. 6. December 1973. Varying definitions of the family are set out in it, all of which are at the kernel of our understanding of how we can protect the family and help those in difficulty. Father Donal Murray told that conference that the family is the setting which provided the essential sense of being accepted. He said that home, as Robert Frost put it, is the place where, when you come home, they have to lead you into. The family, said Father Murray, is a whole network of relationships. The family is many things. The sociology of the family and the literature on the family is very comprehensive. The family, as a unit, is recognised in all societies, not perhaps in the strict sense of the unit——

The Chair must say again that the Deputy is moving very far from the Bill before the House.

Unless I can develop a theme——

The Chair cannot allow any Deputy to develop something that has nothing at all to do with the Bill we are debating.

The name of the Bill is the Family Law Bill.

That does not mean we can debate everything concerning the family. The Bill deals with specific items. Five or six of them are mentioned.

I do not want to argue with you on what might very well be the last day of this Dáil. Unless one is reasonably clear on what one means by the family, how can one talk about family law?

The Deputy must obey the Chair some time in this matter.

That is not fair. I have been here all day until now and we have not had a word until this. It is not just for you to suggest that I should obey the Chair some time.

I said the Deputy must obey the Chair in this matter.

The Chair said "sometime", whatever that means?

I will not argue on this at all. I have given the Deputy every latitude and always do but he is now very remote from the Bill before the House.

The legislation we are looking at in relation to family law is too restrictive and too narrow, possibly because, although we stand up and pay lip service to the family we do not truly understand the social context of the family, the need for legislative reform and for change in social attitudes throughout a wide spectrum. We are not getting anything like that under the heading of this Family Law Bill. The Bill relates to criminal conversation, engaged couples, breach of promise and no more. I submit that the title is wrong and should be renamed. I propose to enter an amendment to that effect on Committee Stage so that we can at least be honest about what we are dealing with.

I am not suggesting that legislation is the answer to all family or marital difficulties. It is probably one of the most difficult areas to legislate for. I regret what I consider to be major omissions from a Bill entitled the Family Law Bill. We are dealing in this Bill with the latter end of marriages which have come to grief. We would be much better employed earlier on in a helpful and preventive manner.

The Law Reform Commission report on this area outlines the thinking behind the legislation which exists on the Statute Book. They suggested that there should be a replacement Act. I am glad to see that is now happening. I believe society will be the better for it. I do not believe this Bill would be before us today were it not for the modest efforts of my party in introducing a Private Members' Bill in March 1980. The Bill deals with questions which were the subject of reports of the Law Reform Commission and, in general, they will have the support of my party. The Bill is a minor contribution to family law legislation.

The action for criminal conversation and the enticement and harbouring of a spouse are to be abolished. I am struck by the implicit change of emphasis between the Second Stage speech of the Minister of State and the reply of the Minister for Justice to the debate on the Private Members' Bill in March 1980. The implication then was that what the Law Reform Commission said would probably guide the Government and would generally frame their approach to this matter. It is significant that that has not happened. I do not wish that to be construed as criticism of the Government. I am pleased they had the courage not to be hidebound by recommendations from either the Law Reform Commission or any other group. This is in no way a reflection on the quality of the work of the Law Reform Commission. They have to do their job as they see it and the Minister and the Government have to do theirs as they see it and the two are not necessarily the same.

The question of breach of promise and aspects of gifts to engaged couples is common sense. If we managed our affairs properly it would hardly be necessary for us to introduce legislation and to concern ourselves with the return of property in situations where engagements break down or to worry ourselves too much about breach of promise questions. The issues should be much more fundamental, but apparently we are not allowed to raise those in the context of a Bill which calls itself the Family Law Bill. I find myself considerably restricted in my approach to the question.

There is a volume of interesting relevant information within and outside this country which could guide us on positive, sustained and sensitive progress in relation to family law. I would like to ask what other steps the Minister has in mind, what other legislation might be on the stocks, and when we might see it, in relation to these questions, whether they relate to family law, family courts or tribunals, nullity, marriage breakdowns, counselling and so on.

As someone who had pleasure in meeting the chairman of the Law Reform Commission, I want to say that we owe the commission a debt of gratitude for the sensitive work they have done in this area. Without their efforts this Bill probably would not be before us. It clearly reflects, and this is different from what the Law Reform Commission suggested, a distinct political decision by the Government which coincides with a decision taken by this party some time ago. I am pleased to see we are at one on that principle. Unfortunately, there are many other areas needing attention.

With a view to getting progress at the earliest possible date, I reiterate the suggestion I made today of the possibility of having a Minister for Family and Children who would be able to advance on a variety of relevant fronts the need for legislative attention to family matters and family law. This Bill is useful because it brings to the fore this area of discussion. I do not believe, nor has the Minister claimed, that the abolition of actions for criminal conversation or a change in the law relating to aspects of gifts to engaged couples, is much more than what might be called a tidying away of anomalies which should have disappeared long ago in a civilised society. However, better late than never.

The way is now clear to deal with the central issues. This House has dodged that responsibility up to now but the Government have not only dodged it but have vehemently slammed the door on the Fine Gael proposal to form an all-party committee to discuss the aspects of marriage which need attention. Perhaps that suggestion, which was meant sincerely and honestly, could be reconsidered so that we can take family law out of the arena of party politics and look at what is happening in society. If we do that we will see that the abolition of criminal conversation is a request, but it is down the list in the publicationAIM News, from the AIM Group, who made a submission to the Law Reform Commission. Neither is it the first item on the lists of many people involved in this area. Are we to conclude that there are other Bills being brought forward? The Fianna Fáil manifesto gave certain undertakings, but I suppose that document will be replaced by the up-to-date manifesto we will be reading in a few days' time.

I am a little disappointed with the progress we have made on family law. This may be the last opportunity I will have to pay a tribute to the Minister of State for the work he has done in introducing legislation, legislation which neither I nor my party would be satisfied with, by giving us the opportunity to discuss this area, by bringing to the public attention the concepts and problems of family law and by making people aware that there are issues in this area which need to be tackled.

At last we have got family law in the legislation on the Dáil Order Paper. Significant steps were taken over the last six or eight years in this area. When the Coalition Government were in power we had the Adoption Acts, 1974 and 1976, the Family Law (Maintenance of Spouses and Children) Act, 1976, and the Family Home Protection Bill, 1976. To that extent family law is not new but there is now a much greater awareness among our people of the need for dealing with the problems in this area. It is from that point of view that I am a little disappointed our answer is along the lines of this Bill. This is something other countries got rid of, not just years ago but decades ago and in one case at least two centuries ago.

The thinking behind the inequities in our legislation which this Bill seeks to deal with is based on the notion of woman being the property of man. Anything we can do to reverse that barbaric notion is a step in the right direction. It will help couples who have undertaken to get married to reconsider their decision, if that reconsideration is in their best interests. It will remove the pressures on such parties to proceed on a course of action about which they may have regrets, but which they are following because social or other pressures are being applied, including a possible breach of promise action.

I firmly believe it is impossible to deal with these matters in isolation. The sections of the Bill dealing with engaged couples, and the assistance this Bill will afford them, will apply largely to teenage couples and to people in their early twenties. We should look at a recommendation of the Law Reform Commission and at resolution 71 in the programme on marriage of our EEC partner states. In nearly all those countries — and this is a recommendation of the Law Reform Commission—the minimum age for marriage is 18 years. It is not so here. I am not suggesting that age is the only criterion which should be considered, because I know people of 18 who are as mature and sensible as people of 48. On balance there is a strong argument for reconsidering our casual approach and the collusion we afford to teenage marriages. It is hypocritical and wrong that all of us, public representatives, priests and so on, should be involved in the celebration of a marriage when we know in our heart of hearts it probably is not going to succeed. On average, statistics show that more than 50 per cent of teenage marriages do not succeed.

Some sections of the Bill will help to relieve pressure on couples — many of whom I know — who may feel that because they entered into some kind of commitment in the newfound post-puberty feeling, they should proceed with it, when common sense and good counsel would have told them it was not time yet. At the same time, we do not want to discourage young people; we do not want to spoil the prospects of people who may have a chance to have a successful marriage. However, our present attitude is clearly too casual. A simplistic change in the marital age will not make an appreciable difference to the problem, but proper pre-marital education might help to prevent some of the later problems.

Family courts and such things should be dealt with comprehensively and will be if there is a change of Government. As a party we have entered into commitments in regard to legislation affecting children which, although it might not answer all the questions, at least would go a lot further than dealing with issues such as criminal conversation and other minor elements of family problems, most of which we should be ashamed to put on our Statute Book in this year of our Lord.

However, I am glad the Bill has been introduced. I wish it well, though I honestly think it is not central to the family law area. I do not wish to be petty about it. At least it is here, which is more than can be said for a lot of other measures that were promised, I would like to think that our modest effort in the form of a Private Members' Bill contributed something. I have been told by the Chair that I am not entitled to develop questions in relation to the definition of families and so forth.

I thank the Deputies who have spoken for the welcome they have given this Bill. Before dealing with the specific points that have been made I will refer to the general points made by Deputies Horgan and Mitchell on the delay in bringing forward legislation to abolish criminal conversation and the fact that last year an Opposition Private Members' Bill proposing its abolition was not accepted by the Government. The Minister for Justice made it clear that the Private Members' Bill dealt only with the question of criminal conversation and not with the related actions for enticement and harbouring. On a number of other occasions he emphasised that he did not propose to put proposals before the Government until he had received and considered the final recommendations of the Law Reform Commission. It would then be a matter for the Government to decide on the type of legislation to be introduced. As I said earlier, this Bill in so far as it deals with the area in question represents the Government's considered response to the recommendations of the commission.

I will now turn to the specific points made in the debate. Deputy Horgan criticised us because it is only now that the action for criminal conversation is being abolished in Ireland. I would point out to him that damages for adultery were available in England until 1970. In the debate and in the public discussion we have had in this connection, that was never referred to; not that what happens elsewhere should be a yard-stick for this Government nor a reason to delay desirable or necessary legislation. Damages for adultery were also available in New Zealand and Australia up to 1975 and are still available in jurisidictions in America and Canada. We are not that much out of step with other countries in this area. Deputy Horgan attempted to draw a comparison between these actions and the rule that does not allow a husband generally to be charged with rape of his wife. Whatever about the actions in question being expressions of what he called the long-standing right of married men to treat their wives more as chattels than human beings that is not the position in regard to the rule on rape within marriage. There is a doubt as to whether the action for criminal conversation was available to a wife. It was never constested in the Irish courts by a woman. The number of actions that have been taken are few. The fact that there was provision for such action was something that the Government and most Deputies and women's organisations particularly felt should not be there. Nevertheless, it was vitally important that whatever decision the Government took would be based on a full examination of the matter.

I appreciate that Deputies Mitchell and Horgan were not as close as Deputy Keating to the discussions in this area. I would have been in a better position to reply to them here this evening if they had made a contribution more closely associated with this Bill. I compliment Deputy Keating on his knowledge of what he was speaking about.

What intrigued me was that when my colleagues were speaking on the Bill the usually observant Chair was not on the ball, though he was quite sharp about an hour ago when I was speaking about family law.

I am sure the Chair dealt with those Deputies on that occasion.

I am sure the Chair was, as usual, forgiving and understanding.

There are limits to the Chair's forgiveness. It goes beyond the three Hail Marys sometimes.

I should have said "The Chair's tolerance". The volume of legislation in this area in recent years has been significant. I would remind the Deputy of some of it. We have had the Succession Act, the Guardianship of Infants Act, the legal status of women——

What is the reference to the legal status of women?

There has been legislation in major areas providing for status for women which had not existed before. The Coalition Government made some contribution as well but the Deputy does not know about it, apparently.

Like Deputy Keating, the Minister should be talking about the Bill before the House.

The Deputy made no reference to the fact that free civil legal aid was put on a statutory basis. The Deputy consumed valuable time in the House——

Which Bill is the Minister talking about?

The Deputy should not interrupt.

Obviously the Deputy was not interested in hearing what I said——

There is only one Bill before the House at present. Deputy Keating has introduced a number of Bills and the Minister is following his example.

The Deputy also attempted to pour cold water on the fact that this Bill contains sections in which we should not have to introduce reforms or legal changes. That is regrettable because these things have caused so much hardship in the past——

The Minister did not say so 12 months ago when he voted against it.

When the Deputy introduced the Private Members' Bill at that time, he did not wait for the final recommendations of that august body, the chairman of which he complimented this evening, the Law Reform Commission. Although the Deputy paid him a compliment, he was still prepared to go ahead without giving the slightest consideration to the fact that they had engaged themselves over a lengthy period in determining their recommendations for proposed changes. At least the Government had the sense to wait for a final report from that statutory body.

That is a euphemism for prevarication.

According to what the Deputy said this evening, it appears that the Deputy's timing was wrong. Regardless of what I have said, I appreciate the Deputy's personal concern in this area and his contribution to this debate. I can assure the Deputy that if we were to amend section 11, at his request, I hate to think what the short title of the Bill would be. We would be dealing with criminal conversation, enticement, harbouring, breach of promise, wedding presents and the property of engaged persons. We would have to include another sheet for the short title.

I would not call a sow's ear a silk purse.

That is a rural expression with which I am familiar and it does not become the Deputy. However, I am prepared to tolerate anything to explain simple points to the Deputy. While some of the Deputy's contribution here today was valid and most of it sincere, some of it was off the mark. There are many more interesting packages of legislative change proposed in the law reform area——

I am pleased to hear that.

When the opportunity arises I will courageously bring them into the House. I am sure I will get some good-humoured quips from the Deputy. I would like the Deputy to be more relevant and to the point than he has been in relation to the important legislation that has been before the House today.

Question put and agreed to.
Committee Stage ordered for Thursday, 14 May 1981.