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Dáil Éireann debate -
Thursday, 7 May 1981

Vol. 328 No. 11

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

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

It is regrettable in a way that some of what we said here this morning may be to some extent overlapped by this Bill. It would have helped if the titles of the two Bills which have come almost simultaneously to us had been more distinct. They are, of course, two separate measures. But in terms of common understanding and acceptance of them it might have been better if we had distinguished more clearly between the two of them.

The Family Law Bill is a Bill which seeks to tidy up the various outdated enactments which are on the Statute Book. One of the main provisions of this Bill is the abolition of actions for criminal conversation, enticement and harbouring of a spouse. I believe the Minister is doing the right thing here and I am pleased that he is accepting, in the spirit if not the letter, precisely what was contained in the Private Members' Bill moved by my own party on 4 March 1980. On that occasion the Minister was less than forthcoming and gave as his reason for not at that time accepting our Bill the usual answer, which is that the Government have their own Bill on the stocks almost ready. But he also made the point that the consideration of this issue by the Law Reform Commission had not yet been completed, the clear indication being that he would be guided by them.

I would like to say in passing that the Law Reform Commission have been abused regularly in this House by being referred to as an area where discussion is still going on on an issue and giving the impression that this means that we cannot enact legislation or make a decision on an issue. The Law Reform Commission have done very good work and are doing very good work. I have no doubt but that they must sometimes feel a little annoyed at the way we use them as an excuse for our inactivity, the same way as we used the task force on child care services for a number of years also. We are still awaiting action there. On 4 March 1980 the Minister, when he, the Minister of State and all his colleagues trouped through the division lobby to vote down our measure, gave us to understand that the Law Reform Commission would be a major contributor to the Government's thinking and that their findings would, in general terms, shape the Bill which was to follow. That has not happened.

The Law Reform Commission, in their document, working paper No. 5, 1978, Law Relating to Criminal Conversation and the Enticement and Harbouring of a Spouse, said they sought replacement action. We believed, despite the collective legal wisdom of the Law Reform Commission, that those replacement actions, where they had been produced, did not suffice either and the best thing to do was to get rid of an Act which at best provided sensational copy for the prurient and did little about helping marriages in difficulty, which was at the heart of this issue and was based on an outdated concept that a man was entitled to financial recompense for the loss of the sexual services of his wife to a third party. The injustice is underlined by the fact that that possibility was not even reciprocal and a woman was not entitled to take such an action, even allowing for the possibility that that kind of area is a matter for financial assessment or for court action.

The Bill before the House, which shows a change of heart if we are to judge by the spirit of what was said by the Minister on 4 March 1980, proposes to get rid of some of the clutter at present on the Statute Books. It proposes to abolish the action of criminal conversation, enticement and harbouring a spouse. It also accepts the proposals of the Law Reform Commission in some other areas. notably in relation to breach of promise of marriage and consequential aspects of that, gifts to engaged couples, gifts between engaged couples and the property of engaged couples. These are very welcome measures. The Government have taken a decision in relation to the Family Law (Protection) Bill, 1980, the draft Bill proposed by the Law Reform Commission, in conjunction with their final report, working papers Nos. 4, 5, 6 and 7 of 24 February 1981, which deal with the areas relating to breach of promise of marriage, criminal conversation, enticement, harbouring of spouse, seduction, enticement and harbouring of a child and the law relating to loss of consortium and loss of services of a child and have discarded the draft Bill. I know that, by doing that, the Government do not wish to cast any reflection on the Law Reform Commission. It is the job of commissions to recommend and it is the job of Governments to make decisions. If Governments were inevitably to accept all such recommendations then the job of Government would be irrelevant in some respects.

This is a departure although a very modest one. Any Bill called the Family Law Bill, 1981, immediately implies to a casual observer as did the Family Law (Protection of Spouses and Children) Bill, 1981, a virtual galaxy of possible measures designed to bring about improvements in the family law area. We just get a few mealy-mouthed measures designed to clear up anachronisms on the Statute Books which other countries have got rid of hundreds of years ago. I do not wish to play down the importance of the issue nor do I wish to denigrate the efforts of the Minister. I want, however, to put the matter into perspective.

This is not a new horizon for Irish families or Irish women. It is not by any means the great panacea, the great reform, the Taoiseach spoke about at the 1980 Ard-Fheis, when he referred to the importance of women in our society. It is just getting rid of the clanking of chains for women in certain categories. At least now their sexual services will not be adjudicated on a sliding scale of costs, and one man over a drink with another man cannot decide if he will sue him for having gone to bed with his wife the previous night. One of those measures does that and I suppose we should be thankful for small mercies.

I expected much more from this Family Law Bill, so the Bill is a little too little and a little too late as well in some cases. I met one of the women who was the subject of one of those matters. The fascination of those actions is an academic exercise because it is a very human and tragic problem. She was outside this operation and she protested about it. Two men were having a court case about her. She was exhibit A and she was not entitled to participate in it. We are now doing away with that and we are not going to fall into the trap of trying to bring in some other measure which will allow people to sue each other across the courts for an area of their private lives which has implications of public morality but which is fundamentally about the quality of their relationship. Until we take this whole area of marital difficulty, make some sense of it and produce positive and protective measures to assist and, as Deputy Desmond suggests, when there are insoluble difficulties, to have the courage to take whatever decisions are necessary, we will be dealing in a very slow way with the problems arising in this regard.

There are glaring deficiencies in the whole area of family law. It is the dying days of this Dáil and with the suggestion of unreality which prevails at the moment, from the point of view that other issues are dominating the minds of the people, it is not the best time to embark on a long exposé of the issues which could lie at the heart of essential reform in this area. It should be said, however, that there are other measures which should be taken, which a Bill with a title of Family Law Bill, 1981, implies are under consideration. The Bill has a good title but the Bill does not live up to the expectations we had in relation to it. I repeat what I said on an earlier Bill today that if we truly want to make progress here we should consider setting up a Minister for the family and children. I have argued that the various Government Departments dealing with children and family law do so without any statutory inter-linkage and without any correlation of their efforts except on the most casual and consultative basis.

The time has come when we should reconsider our departmental system, analysing, remodelling and streamlining it to meet modern demands, and to see if some of the Departments are still relevant or needed as they are now structured. To imply that the present 15 cabinet Ministers have equality of responsibility and importance in their status is obviously not true; it is unreal. If we can have a Minister with relatively minor responsibilities, this much talked about, much praised and sanctified area of the family is one which might be worthy of consideration. His job would not be the woolly one of presiding over occasional conventions dedicated to the family; it would be to draw together the strands of legal and other responsibilities from various Departments to ensure that our response in the family area is integrated and comprehensive. I do not think that can be repeated too often.

If we really believe what we regularly talk about — the sanctity of marriage, a phrase I respect and which sums up much of the nobility and grandeur of that status — we would do many things differently, we would do many things we are not doing and perhaps we would undo some of the things we are doing. It is a little too trite for people to talk about the sanctity of marriage and drive home through streets which in their decay and degeneration show we have a long way to go before we live as we preach.

All available evidence shows that some marriages have problems and difficulties. Our response has been miniscule, negative and to pretend that they do not exist, or if they do, that the best answer is a combination of waiting and prayer. Perhaps both will help. We as public representatives, have a responsibility to see to what extent legislation and the creation of a proper legal and social environment will help solve this major problem. I believe the roots of the problem are very deep and imply major changes if they are to be successful. I am not suggesting that legislation will transform this situation but I believe there could be improvements, which we have not dealt with.

A major omission is a comprehensive counselling structure which should have a comprehensive investment of resources. In a book entitled Can You Stay Married? written by Nuala Fennell, Deirdre McDevitt and Bernadette Quinn, they talk about the importance of counselling and the need for public education to dispel the negative image of marriage counselling. To seek marriage counselling and public education is an admission that you have a problem, that you are willing to talk about it and that you now need some kind of aid outside your immediate experience to get an answer to your problems.

Good work is being done in this area. Many groups have responded and tried to fill the gap. Groups like AIM, the Women's Centres, ADAPT, that is, the Association for Deserted and Alone Parents, the family group of Alcoholics Anonymous — I remember attending a meeting to get an insight into the tragedies there and it showed that this is not a problem for one socio-economic grouping but is spread throughout society — ALLY, the Adult Education Centre for Women, the Association of Widows of Civil Servants, the Battered Wives Refuge in Bray, CHERISH, the Catholic Marriage Advisory Council, Cluan Mhuire Family Centre, Council for the Status of Women, CURA — the counselling service for single pregnant women — the Dublin Rape Crisis Centre, FLAC — Free Legal Aid Centres, who have done very fine work and to whom we all owe a debt of gratitude — Gamblers Anonymous, Gingerbread Ireland, ISPCC, the Marriage Counselling Service of Grafton Street, who have been very helpful to a variety of people on a number of occasions, the National Association of Widows of Ireland, the National Social Service Council, the Single Women's Association, the Women's Advisory Committee of ICTU, Women's Aid and many other groups. It is important that the role of the volunteer be recognised and not be supplanted.

We should help such groups. Where they are not able to meet a need — whether it be on the basis of areas where they do not exist or whether it be on the basis of areas in cities where the resources cannot stretch — the State has a job not just to supplement and complement but to supervise where desirable and to ensure that we get in where needed in the early stages, not in an intrusive or overbearing fashion but so that we can help and protect the marriages about which we preach so often. We do not do that now.

This Bill is fundamentally an attempt at a curative approach to certain specific problems and is to be welcomed. I do not know who thinks up these titles or if they read the Bills, but the titles of the two Bills discussed here today do not reflect the contents of the Bills. How serious is the problem, or are we exaggerating? With the reactive Parliament we have, we tend to get legislation and a reaction to issues that seem to be advanced as key issues of the day. As responsible Members of Parliament and as married men, we should stress that there are many happy and fulfilled marriages in Ireland, and I hope that describes the majority of marriages. We should not allow that picture to be obscured, slanted or in any way depressed in its significance. We are not talking about those marriages this morning, although any marriage might develop difficulties. We are talking principally about marriages that are in trouble for in some cases identifiable reasons.

In the area of the social research we lag behind. The ESRI have done fine work, mainly on an economic theme. We should develop a social research agency. Whether that be a geared-up echelon of the ESRI or a separate agency I am not very concerned, so long as they undertake to produce enlightened and updated social research on which to base social legislation and economic policy. That is what economic policy is, not a fiscal statement but an essential statement of our social philosophy. Sometimes we lose sight of that.

When we look around and try to glean figures in relation to marriage difficulties, marriage breakdowns or any of the areas referred to here, unfortunately we find there is not very much available. This morning I referred to the problems in the children's area. If we want a pen-picture of the problems of marriage, what are we talking about? A couple of straws in the wind might help us.

In The Case For Divorce in the Irish Republic the author, William Duncan, refers to the debate on The Social Welfare Bill, 1970, now completely out of date, and the Estimate of the then Minister, Deputy Colley, that about 1,000 wives would qualify for the deserted wife's allowance. The book states:

The scheme began operating on October 1, 1970. Within six months the 1,000 mark had been passed and by the end of 1976 the combined figure for wives in receipt of the Allowance and the Benefit (introduced in 1973) was 4,783. In 1976, 962 wives applied for the Allowance or Benefit, and 717 were successful. Though some of the applicants may have been re-applying it is reasonable to assure that the annual number of fresh applications, indicating additional cases of desertion, exceeds considerably the annual increase in the overall number of recipients, which in 1976 was 459. This is because some applicants were unsuccessful and because some wives who received the Allowance or Benefit in 1976 must have ceased to qualify in 1976.

So we see that the numbers of deserted wives are increasing all the time. Personally I regard it as a very serious problem. I am aware of many frightening cases, it is startling how many one comes across. To my knowledge there are not many cases of deserted husbands, but many wives find themselves being left literally holding the baby.

In the area of applications to the civil courts for High Court remedies of various kinds, which is a barometer of marital difficulties, in the ten years from 1968 to 1977 there were only 202 petitions for divorce a mensa et thoro, and the annual rate has been dropping. But Mr. Duncan says:

These figures clearly bear no relationship to the rate of marital breakdown. They reflect rather the prohibitive expense, the complexity and to some extent the irrelevance of the remedy. For similar reasons in the ten years from 1966 to 1975 there were only 29 petitions for civil annulment, and 4 petitions for a decree for the restitution of conjugal rights....

Statistics at court level are not necessarily the best barometer of the rate of marriage breakdown in Ireland. This morning we spoke at length of violence between spouses and barring orders, and from now on we have protection orders. Mr. Duncan's book continues:

Despite the problems over the enforcement and durability of barring orders, the number of applications being made is high and, combined with the number of assault summonses taken out, indicates a still growing problem of family violence in the State. In 1976, the first year of their operation, 180 barring orders were applied for in the Dublin Metropolitan District Court, and 49 were granted. In 1978 the figures had risen to 403 and 103 respectively, and in the same year 61 summonses for common assault were taken out.

If one seeks statistical help from the free legal advice centres, to whom a tribute should be paid, one finds statistics of staggering proportions. It is clear that the single largest category of cases by whom advice is sought involves family law problems, most of them arising from marital breakdowns. Duncan continues:

In roughly the first three years of FLAC operations, 646 "inter-personal" cases were dealt with, representing 26 per cent of all cases. Since then both the number and proportion of family cases have risen. From October 1974 to October 1975 the eight centres by then operating dealt with 1,493 family law cases... and the total number of family cases from 1969 to 1975 was 4,069.

These figures are now outdated. New figures give us the true perspective of the seriousness of the problem. On page 77. Duncan gives statistics from court records which show a similar pattern, a rising number of cases in this area all of which point to two things. They point to the increasing number of such problems and to the fact that we are increasingly realising that this pattern exists. That is a good thing — honesty can not be deemed to be bad. What, then, should we do? What should the Bill include? Our general approach to the problems perhaps could not be contained in one Bill.

First, I deplore the absolutely inadequate education for marriage available to most couples, particularly teenagers. It does not exist except by way of a number of voluntary pre-marriage courses. Most young people going into marriage have very little idea of what is involved, have no education on the needs to understand the development of a relationship or the practical day-to-day problems of home economics, the advent of family, all of the events that will occur. There is then the problem of adequate pre- and post-marriage counselling. We plan for most things but not for that. If you are only driving a car you get it serviced regularly. but for some reason we assume a marriage to be blessed from the first day, and if somebody happens to seek advice he or she is nearly always deemed to have failed. It is extraordinary. This involves not only pre-marriage but post-marriage situations. There is rarely a human situation which cannot be enriched. We do not want to foist ourselves on situations where people are contented and satisfied. but I urge that the State take a positive attitude to making available the counselling services that are so necessary. That is what cherishing the family means.

My third suggestion involves a hard option but an essential one. It involves realistic economic treatment of the family, income, children's allowances, the income of women in the home. It should be Government policy to ensure that the economic value of women to our society, of women who remain at home, should be recognised financially. It is desirable to prevent a situation in which either the husband or the wife feel obliged to go to work to maintain subsistence or basic living standards. If either or both parties wish to go because they believe that is the best way to fulfil themselves, that is their full right and one respects it, but there are many couples who do not have an option. The State should help in such circumstances. Where a woman or a man — men are in a minority — would prefer to be with the family, particularly in the early formative years when children are young, but is obliged to go out to work to make ends meet, it would be better all round if the State were to assist in this respect. It is possible to work out the financing of that. We should work to arrive at a situation where there is at least a minimum family income for every family in the State——

The Deputy is getting away from the subject matter of the Bill.

I am pointing out what I consider to be deficiencies in the Bill, a Bill which is entitled Family Law Bill. Such a Bill should have reference to a variety of family law issues. The early warning systems we spoke about, whether in relation to child abuse or marriage stress or tension, should be an important stage in our consideration. In conjunction with my earlier remarks on pre-marriage education, we should arrange some curricular change in the schools to alert people and educate them in these matters.

There is then the question of legal aid. On a number of occasions today we found ourselves being vague about how a husband or wife could have access to legal aid. We were vague about who would pay the costs, about whether a person would have to go to the District Court or to a judge, and widespread ignorance was displayed about our ability to obtain legal aid.

Debate adjourned.