Report of Committee on Marriage Breakdown: Statements.

Mr. W. O'Brien

I am pleased to bring this debate to where it properly belongs, that is, in Dáil Éireann. I want to outline the work of the Joint Committee on Marriage Breakdown, but before I do this I want to touch briefly on how we reached the view that we arrived at. I must confess that I had no great understanding of the whole issue of marriage breakdown before this committee were formed. It gives me no great pride to say that all of us, whether politicians or not, tend not to become involved in issues which do not affect us personally. The plight of the tens of thousands of people who have broken marriages has touched us now. I feel that I can speak for all the members of the committee when I say that we got a profound understanding of what life is like for those unfortunate enough to have broken marriages.

Throughout the 18 months of the committee's meetings, all of us became deeply involved in the real social issues. So what kept us talking so long? Why did we have to come before the Dáil and seek extensions to the life of our committee? In short, the sheer complexity of the subject became apparent to us only as we got to grips with what was involved. We heard oral submissions and we read written submissions. Many of these were the considered views of groups of people. Some were well thought out personal views. But underneath we had very little knowledge at the outset of the wide range of social problems besetting family life in this country. I now admit to a more mature approach to finding lasting and worthwhile solutions. Our determination to produce a considered, comprehensive report ensured that our deliberations lasted for a much longer period than was thought to be necessary at first. I am grateful to this House and, indeed, to the Seanad for allowing us the extensions as requested.

The committee, of course, recognised the gravity and sensitivity of this important social area and consequently knew that both Houses of the Oireachtas would not welcome a report that was hasty and injudiciously compiled. I would like at this stage to pay tribute to the many people who helped to bring this report to its final conclusion. First, I should like to pay tribute to the wonderful committee for the work they did over the very long period of 18 months, sometimes for as long as eight hours a day. Not alone were they a committee dedicated to their task, but they were unique in so far as they represented a very wide area — intellectual, health, educational and legal. Such qualifications made a major contribution to this report.

I should like to pay tribute to the many people who made written and oral submissions. Those people are deserving of the greatest tribute we can pay them. It is difficult for any man or woman to express their views to a committee, particularly knowing that they would go on the record, and I pay tribute to them. It was clear that many people were aware of the major social problem. I should like to pay tribute also to our eminent guest, Dr. Jack Dominian, senior psychiatrist of the Central Middlesex Hospital, England, and to thank him for coming such a long way at short notice and giving us the benefit of his knowledge and experience. I know each member of the committee would endorse the tribute I pay to him. I should like to avail of this opportunity to thank the national and local papers for the very wide coverage they gave us particularly when we advertised for people to make submissions. At that stage they made a major contribution to the beginning of our discussions because people became aware that contributions and submissions were welcome from everybody.

I should like to thank our consultant, Mr. Gerry Durkan, our Secretary, Mr. Rory MacCabe, and Mr. Seamus Phelan who came in at a late stage when we really needed help. They gave us of their best at all times. Last but not least I should like to thank the press who were always available to give us the publicity so essential to the success of our work.

One might ask: what did the committee achieve? May I remind the House of our terms of reference, part of which read:

to consider the protection of marriage, and of family life, and to examine the problems which follow the breakdown of marriage, and to report to the Houses of the Oireachtas thereon.

I am glad to be able to say that we have honoured that commitment.

Public attention was focused on the single word "divorce". When I became a member of the committee I never envisaged being a member of a divorce committee. It was often described as a divorce committee. I understood we had been established as a committee to examine the many problems confronting many families throughout the country. Of course divorce was one of the many issues we discussed. I have said it before, and take this opportunity to repeat, that it was not the focus of our discussions. Had the committee spent their time looking at divorce and divorce only, our deliberations would not have lasted so long. We would have needed no extensions or would not have sat for 18 months.

I should like every Member of the House who has an interest in the report of the committee to express honestly his or her views. I believe that every Member of both Houses of the Oireachtas, and many people throughout the country, have a deep interest in the contents of this report. I am sure the vast majority of Members will welcome most of the findings of the committee. I recognise that, in every party in this House, there are widely differing views on the more controversial aspects of the report of the committee. Bearing in mind the volume of input to this report and the work of the committee, I ask each Member to read the report carefully and, having done so, to express their views on what it contains.

Our society is deeply divided on the controversial issue of divorce. This debate may shed enough light on the matter to bring about a consensus. Let us be honest with ourselves and admit openly that all political parties are divided on this issue as well as everybody else. There are as many views as there are Deputies. I ask all Members not to allow this debate to become a farce. I do not want to hear set speeches whose sole purpose is to support a party line. If that should happen, then the members of the committee and I will have wasted our time. Mind you, as a committee, we had our problems. That is only natural — one will have problems within one's own party — and anybody who stands up here representing any party who tells us that he or she has no problems in his or her party on certain issues is telling lies. It is difficult within any party to obtain maximum or full approval, to obtain the unanimous views of three parties plus Independents. I should like to pay tribute to the parties. They forgot the political issues; they put the social issue foremost and were conscious of their task at all times. I do not think I could say that too often.

I should like this House to treat this major social issue with the respect it deserves. I believe that the report of the committee constitutes a valuable basis for this debate. I might quote here part of the Introduction to our Report in Chapter 1 where it is said:

The Committee recognised the preeminent desire of all concerned to ensure in so far as possible the preservation and protection of marriage. The majority of marriages which are contracted in the State are, and remain, viable and stable. The Committee emphasised the need to ensure that the social and legal infrastructure of the State should not work to increase the pressure which can be placed on marriage and much of the Committee's deliberations consequently focused on the protection of marriage and of family life.

The committee acknowledged that the present law does not provide adequate protection for those persons whose marriages do not remain viable and that this, in itself, is a threat to marriage.

Chapter 2 is entitled Marriage and the Family — The Legal and Constitutional Position. I shall not go through this in any detail. I would be unable to do so in 45 minutes anyway. It is an extremely difficult exercise because one would need to be a lawyer, many aspects being very difficult for the legal people much less the ordinary layman. As I have said, Chapter 2 sets out the legal and constitutional position of the marriage and the family in our State. Some submissions received by the committee referred to the extramarital unions which are occurring in the State.

The committee expressed concern at the increasing number of families in the State which have no protection under the constitutional definition of "family". These unions take many forms. There are single people living together. There are married persons who are separated and are living with single persons or with other separated persons. This is indeed a serious matter and calls for some immediate attention. I am not suggesting how we should go about it, but I am quite sure that, when this report has been read and listened to — and I am quite sure the media will resort to it as far as possible to enlighten many people throughout the country — if we succeed in elucidating some of this we shall have done a good job.

Chapter 3 is entitled The Protection of Marriage and Family Life and the factors which contribute to the breakdown of marriage are there dealt with in detail. It says:

This chapter concentrates on the prevention of marriage breakdown and, to a large extent, draws on the information received by the Committee and observations made by the Committee in other areas of this report. Such observations deal with the universally accepted causes of breakdown — personality defects, differing degrees of maturity, basic incompatibility of parties, all of which may be often manifested by argument, discord, alcohol and drug abuse, violence and cruelty, both mental and physical. The committee see the role which the

State plays through the education system in this area as complementary to the primary responsibility which is placed on parents. In an oral submission to the committee, Dr. Jack Dominian, senior psychiatrist at the Central Middlesex Hospital, said:

My image of the prevention of marital breakdown starts in the family. I would like to see the family as being the model. In regard to the schools, I have said again and again that in addition to "The Three R's" I want a fourth "R" which stands for relationships to be an essential part of education in schools. We are doing research at the moment. I am not saying that you can teach boys and girls about marriage, beacuse it is too big a step for that age group, but you can teach them about personal relationships, about trust, about communications, about affection and about understanding. I would like to see that, which is the infrastructure of marriage, being an essential part of education.

The committee recognised the role which is played by churches, schools, voluntary groups, third level and other educational institutions in this area. This work needs to be developed, augmented and financially supported. In addition to formal education and the education which is given in the home, the committee feel that the State has a special responsibility at the immediate pre-marriage stage. From the time they formally declare their intention of marrying by notifying a clergyman or applying to a registrar with powers to solemnise civil marriages, the parties should have access to a pre-marrige guidance service and be positively encouraged to avail of such a service.

With regard to counselling, the committee are concerned that support for marriage, especially during the early years when marriages can be most vulnerable, is at best inadequate. The committee are of the opinion that the State is obliged to ensure that the educational system provides a means to educate persons for marrige and that there is an easily accessible and effective counselling service available to married persons.

The committee considered that changes in the present law should be made to take account of the lowering of the age of majority to 18 years; changes in the pattern of the age at which people are marrying at present; the desirability of fixing a minimum age for marriage which would reflect the widely held view that marriages involving young persons are at greater risk than other marriages and the need to ensure that marriage is with full and free consent and with full understanding of its nature and implications, social, economic and legal. Indeed, it is not necessary to carry out a major survey to ascertain that younger people are more vulnerable with regard to the breakdown of marriage because they do not fully realise the responsibility thay are taking on. The committee are of the opinion that the free age for marriage, that is, the age at which a person can freely contract a valid marriage without any prior requirement for parental consent should be reduced from 21 years to 18 years.

The committee felt it was desirable to examine in detail the question of how and why marriages break down in order to place the many elements of breakdown in the context of their opinions and observations on how best to protect marriage and family life and to deal with problems caused by marriage breakdown. From submissions received by the committee, the scale and extent of problems caused by marriage breakdown are considerable. The social and emotional costs of broken marriages are high. There are marital and psychiatric disorders, of which depression is the most commonly cited. Long term effects on children of broken marriages include increased risk of delinquency and disruption in their own subsequent marriages.

However, these findings disguise the fact that the ending of a marriage is frequently preceded by intense conflict and there is a substantial body of evidence that destructive parental interaction is associated with delinquency and disturbance in children rather than separation or divorce. Thus, for many spouses and some children, the ending of the marriage brings relief from tension and hostility. Nonetheless, the process of adjustment to the ending of a marriage for spouses and children is painful and may be lengthy especially when accompanied by on-going recrimination. However, it has been ascertained that the children would prefer to have their parents and do not want either to go and that is understandable.

We are all aware of second unions being entered into and continued with every appearance of stability and happiness in which the partners beget and raise children. While possessing all the appearances of a regular family, the second union does not have State recognition or protection as a marriage. When it is remembered that at least one of the partners to such a union has a living spouse with whom at an earlier date marriage vows were exchanged and if the number of such second unions taking place was small, the norm of marriage as a commitment for life, come what may, could still be seen as that accepted by society in general.

The legal remedies were given very comprehensive consideration in the report. I draw the attention of all Members to this chapter, especially those who intend to contribute to this debate. The committee note that judicial developments which have attempted to update the law over the last ten years have introduced a certain measure of legal confusion which is open to different interpretation. In considering the grounds for obtaining a decree of nullity, the committee were very much influenced by the recommendation of the Law Reform Committee on Nullity. The report treats that area in great depth.

In regard to judicial separation, the committee took serious note of the proposals of the Law Reform Commission and were unanimously of the view that irretrievable marriage breakdown could be one ground for judicial separation. In making this recommendation they set out in detail in Chapter 7 of the report the conditions which cause irretrievable marriage breakdown. In the circumstances of such breakdown, many other social problems were considered at length and definite recommendations made in regard to maintenance, guardianship, custody of children and the sharing of matrimonial property. Barring orders, which are now widely used in family disputes, were fully considered by the committee and their opinion is clearly set out in the report.

The committee made very comprehensive recommendations regarding a new family courts structure. They found that existing structures to deal with family disputes were grossly inadequate and outdated. They set out in great detail the objectives of family courts, their structures, staffing and welfare services. The cost of such a system should not be a compelling factor against the setting up of such a system.

A recurrent theme in many of the submissions made by the various groups to the committee was the need for some form of mediation service to be available to parties involved in marital disputes. Mediation was chosen with considerable care. It should be pointed out here that reconciliation and conciliation have different meanings. I draw attention to the considerable value of such a mediation service as set out in chapter 8 of the report.

I come now to the section of the report which perhaps attracted the greatest level of media attention, that is, the section dealing with the dissolution of marriage and the legal difficulties that would accommodate divorce. The committee examined more than 700 submissions and listened to the oral evidence of 24 different groups. Arguments for and against divorce formed an important opinion in each and every one of the submissions.

As chairman, I was impressed by the many submissions made. It would be difficult to say which was the most impressive. However, there are two I should like to mention. Both of the groups involved held different viewpoints but in spite of that they made honest and sincere contributions. Irrespective of their beliefs, it was obvious that they were speaking from their hearts.

I should like to mention the contribution made by the Knock Marriage Advice Bureau against divorce and the case made by the Church of Ireland for divorce. All the submissions were made sincerely. After this the people must decide what is to happen. Many of the written and oral submissions received referred to the constitutional prohibition on divorce. Some argued in favour of a referendum on the issue while others argued against it. It is not possible for me in presenting this report to the Dáil to refer to the many excellent contributions of so many concerned and interested people. There were many compelling arguments for divorce but there were equally compelling arguments against it.

Having considered the submissions and bearing in mind the facts set out above, the committee were of the view that a referendum should be held. This was a decision of the majority of the committee. A minority of the committee believed that the matter should be decided by the Oireachtas as a whole without a recommendation from the committee.

I hope I have outlined the position. I know that many Members are interested in the matter and I am sure there will be many speakers today. I am recommending this report to the House. I know it has the approval of every member of the committee and I know that at the conclusion of the debate it will have the approval of every Member of both Houses of the Oireachtas.

Dr. O'Hanlon

I was a member of the Joint Committee on Marriage Breakdown. My colleague, Deputy Woods, was the leader of the Fianna Fáil group on that committee and he made a very valuable contribution in the preparation of the report. I regret he cannot be here this morning to participate in the debate. As Members of the House know, he has been ill for some time but thank God he is making a good recovery and we hope he will be back to make a contribution before this debate is completed.

As Deputy O'Brien has pointed out, the committee consisted of 15 members representing both Houses of the Oireachtas. I should like to compliment Deputy O'Brien on the way he chaired that committee. It was a difficult task but he showed an understanding of the various points of view of the members.

Because of the publicity associated with the committee when their work was centred around divorce, the excellent work of the committee in dealing with many other questions relating to the protection of marriage and family life has not been recognised. All of these questions were dealt with in great detail. The committee sat for over 18 months. At times they sat three days a week, which is more than the average sittings for a joint committee but, unfortunately, the publicity, sometimes adverse, centred on the issue of divorce. It is important to stress that members of the committee were in agreement on the main thrust of the report and excellent work was performed by them. I believe the committee worked harder than any other joint committee in trying to meet a reasonable deadline. On one occasion they did something no other committee ever did, namely, the members travelled to Athlone from all parts of the country to pursue the preparation of the report. There were three extensions to the time allotted on the setting up of the committee but the House will appreciate that those extensions were worthwhile because they allowed the committee the extra time that was necessary to improve the report.

I hope the report will be the subject of widespread and constructive debate here having regard to the complex social issues involved. I attended most of the meetings during the 18 months and I was struck by the problems presented to us. We were aware of some of the problems before we became members of the committee but other problems came to our notice during that time. I think every member must have been impressed by the issues raised and by the sincerity of the people who made oral and written submissions. They held sincere views, representing all shades of opinion.

While the report has been prepared by politicians, no member is expert in all aspects of the protection of marriage and family life or of marriage breakdown. However, we had much expert advice available to us including 24 oral submissions and over 700 written submissions. In addition, we had our clerical staff, including a barrister. The submissions represented the whole spectrum of opinion on the issues discussed in the report. The committee were very grateful to all who made presentations. Some of the people concerned travelled long distances to meet us. For example, Dr. Jack Dominian, the senior psychiatrist at the Central Middlesex Hospital, flew over to Dublin one morning and flew back in the afternoon to give us the benefit of his great experience in the whole area of marriage, in preparation for marriage, support for marriage and the problems caused by marriage breakdown.

We must be concerned about the marital problems existing in our society as outlined by Deputy O'Brien. Single persons are living outside marriage, married persons are living with single persons, and so on. We must be concerned about this and as legislators we must endeavour to do what we can to provide for those people.

Chapter 3 is very important. It deals with the preparation for marriage and family life. Preparation for marriage is very important, and the report suggests the addition to our educational system of education for life, for marriage. Though the home is the primary educator, the State has an obligation to ensure that education for life will be provided, education for living, education for facing the problems experienced by individuals. The passage from the submission by Dr. Dominian, read by Deputy O'Brien, in my view sums up what we should like to see added to our educational system to prepare people for relationships in later life. Dr. Dominian stressed the need for young people to learn about personal relationships, communication, affection and understanding. He referred to this as the infrastructure of marriage. The State should address itself to these issues as part of the educational system.

At present, voluntary organisations alone provide preparation for marriage through their pre-marriage courses. The Catholic Marriage Advisory Council and the Marriage Counselling Service provide courses to prepare people for marriage. They do excellent work and they are entitled to more support, and particularly finance, from the State to enable them to carry on their work. Their members have special training which gives them qualifications to carry out work in the best interests of persons preparing for marriage, and they provide a counselling service after marriage.

There was general agreement among committee members on most issues. It is important to stress that, because much of the publicity surrounding the committee's work referred to divergences of opinion. There was agreement on most issues that were discussed. For instance, there was general agreement that the age for marriage should be reduced from 21 years to 18 years, which is now the age of majority. Under present law a couple can get married when one of them is only 16 years, with the consent of the parents. We in the committee agreed that 18 should be the norm for marriage except in special circumstances when people can get married younger with the permission of the courts and the guardians of the persons concerned.

Chapters 4 and 5 deal with marriage breakdown, which is traumatic, particularly for the people involved. All of us must be sensitive about the problems created for couples. Marriage duration expectations have changed during the years. At the end of the last century the average marriage lasted only 20 years because people were much older when they got married and one or both partners had died from disease before the age of 50 years. Now the expectations of young couples getting married are 42 years of marriage. This is a major change.

In our grandparents' day the husband went out to work to provide for his family and the wife managed the household on the money he brought home and gave to her. Couples had to provide shelter for their families and to protect them against disease. Of course many of the infectious diseases then rampant do not trouble us any more. Then, when families were protected against poverty and disease and when shelter was provided for them the marriages were regarded as successful, but that would not be acceptable nowadays because people getting married expect more, in terms of companionship particularly, from marriage. As Deputy O'Brien said, the first five years of marriage are difficult and particularly during those days there should be more support available for people who have troubles.

Marriage may suffer pressures from within the marriage itself and externally from unemployment, inadequate housing and the great changes in society. As legislators we must be conscious of that. We should have the interest of families at heart when preparing our legislation. The committee had a number of suggestions about the responsibility of legislators in regard to marriage. Dr. Dominian suggested that rather than having a Minister of State with responsibility in this respect there should be a section in a Department, for example, the Department of Health, which would examine all legislation to ensure that it would not be opposed to family life in any way, to ensure that any legislation to be presented to the Oireachtas would not be detrimental to family life. That is worthy of consideration by us.

Members of the committee were concerned about the effects on marriage of alcoholism and drug abuse, not alone illicit drugs but those prescribed by doctors. They were of the opinion that a campaign should be launched to make people more aware of the dangers of these abuses.

The committee dealt with the problems caused by the breakdown of marriage for the parties involved and for the State, too. We received many submissions from groups such as the Irish Association of Social Workers and from individuals describing the social, emotional and financial consequences of broken marriages. The reports submitted to us and in particular the oral submissions must have had an impact on every member of the committee. Having considered these various submissions it is obvious that there is need for the State to make a greater effort to support marriage and family life and to try to prevent marital breakdown in so far as that is possible.

Regarding the legal remedies in this area, there was unanimous agreement on the many changes that could be made without the need for a referendum. The law of nullity in the State is the Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870. That is more than 115 years in existence. While there have been a number of judicial developments in the past ten years in this area there is a need to update the law of nullity. Judges have interpreted the law in different ways during the time but there must be an updating of that law especially in the light of advances in medical science, psychiatry and psychology. Concern was expressed at the cost of bringing a defended case of nullity to the court. This could be as high as £2,000 to £3,000 plus 23 per cent VAT.

The committee spent some time considering the matter of separation agreements and of judicial separation and list what they understand as constituting irretrievable breakdown of marriage. They give their opinion regarding changes in the law that would be advantageous to the parties involved, including children. Each section, and especially that section dealing with legal remedies, is well worth studying by every Member of the House because not only is the present law outlined but so also are the changes the committee recommend and in respect of which there was general agreement among the members.

The committee considered carefully the whole question of maintenance. Again, it was agreed generally that the Family Law (Maintenance of Spouses and Children) Act, 1976 works satisfactorily. However, we agreed that there are areas where that law could be improved. The committee were of the opinion that where there is default on payment, the State should make the payment and then pursue the defaulter. During various debates here on social welfare matters I have made the point that where, for example, there is an application for a deserted wife's allowance, there is an obligation on the woman concerned to pursue her husband for maintenance but by reason of being deserted and not maintained she may have no means of pursuing him. The committee were of the opinion that in such cases the State should pay the deserted wife's allowance and then pursue the husband with their resources.

Concern was expressed to the committee at the different interpretations of the law by different justices and judges. The committee are of the opinion that there should be uniform judicial interpretation as to the level of maintenance awards.

On the matter of custody of children, we received a submission that there should be joint custody orders in order to ensure that one parent would not consider himself or herself alienated from a child. The committee considered this issue and took the view that a joint custody order would be meaningless unless it meant that a child would spend half the week with one parent and the other half with the other parent but we were of the opinion that that would not be in the child's best interest except in very exceptional circumstances. The committee considered that in making a custody order it is absolutely essential that there be proper professional independent evidence available to the judge so as to ensure that the correct decision is arrived at and a decision that is in the best interest of the child. This raises the question of family courts which is dealt with in chapter 9.

The committee dealt in much detail with the problem of matrimonial property and are of the opinion that the present system is unsatisfactory. It decides spouses' interests in property on the basis of chance decisions made by them down though the years. This system discriminates against many women who give up work outside the home and who do not therefore make contributions which would entitle them to an interest in property acquired in the names of their husbands. The Constitution provides for special protection for those women who stay in the home and it is important that our laws would not discriminate against such women. We concluded that the law is unsatisfactory in that regard.

The Family Home Protection Act was found to be defective in recent decisions of the High Court, for example, where a creditor applied to sell the family home on foot of a judgment obtained against him in respect of a debt. The committee were of the view that the law should be amended to ensure that the family home would be protected fully.

A number of submissions were made to the committee on the matter of barring orders. One of these submissions was from the group, Dads Against Discrimination, who were very concerned in this regard and with the way in which barring orders are implemented. The committee are of the opinion that the definition of conduct which gives rise to the granting of barring orders should ensure that barring orders can continue to be granted where the health, safety or welfare of a spouse or children are at risk and not only in situations involving physical violence which would appear to be the criterion following a High Court case — O'B. v. O'B — in 1983. We would consider it very important that where there is risk to a family a barring order to keep the offending spouse out of the home should be effective to ensure the safety of the family in terms of health and welfare.

One of the more contentious issues debated at length by the Committee was the constitutional prohibition on divorce. In this respect we received numerous submissions, both oral and written, some arguing in favour of a referendum on the issue and others arguing against. Similarly, the committee received many submissions for and against divorce. I agree with Deputy O'Brien that the submissions were made in a positive way and sincerely held views were expressed by the various groups and individuals who made these submissions. A lot of evidence was presented to the committee.

It is for the people to decide whether the present constitutional support for marriage and family life should be retained. That decision would be made by way of referendum. I have no particular objection to the people having the right to decide by referendum, but it is for the Government to decide if there should be a referendum and when it should be held. If this Government bring forward legislation to hold a referendum we in Fianna Fáil will examine it in a mature, responsible and constructive way and decide on our approach having regard to what we believe is in the best interest of the Irish people.

I am not convinced that divorce is in the interest of society. While I am sensitive to the problems created for individuals, my concern is that the cure could become worse than the disease. I believe we must look at the social consequences and the financial implications of divorce. The committee were not prepared to express any view on whether divorce legislation is either necessary or desirable in this State at present. Many of the groups who made submissions to the committee believe there is a need for some form of mediation service and, as the report states in paragraph 8.3, mediation is about promoting agreement and reducing disagreement. It seeks to minimise the stress and bitterness resulting from a broken marriage.

I recommend chapter 8 which deals with mediation to the Members of this House. The committee are of the opinion that there should be a mediation service and easy access to it. The service should be staffed by a combination of full time trained specialists and part time voluntary workers. The basic concept of mediation is that the parties to a broken marriage should be allowed to find their own solutions to their difficulties with the help of a trained mediator. The committee were of the opinion that such agreement reached through mediation could be noted and accepted by the family court.

Unfortunately, a certain proportion of the problems will not be solved through mediation and will find their way into court. There should be a proper family court structure for family matters, not just in regard to marital breakdown but for other family matters as well. On the Second Stage debate of the Children (Care and Protection) Bill, which is going through the House at present, I and others made this point. It is important that there should be a proper family court structure for dealing with family matters, and a proper welfare service with proper staffing.

Chapter 9 deals in great detail with the family court and paragraph 9.2 outlines the objectives of such a court. Obviously under the Constitution it would have to be part of the High Court, and it should be, but it should be a special court with its own unique structure. It should have its own atmosphere and not held in the buildings used for other types of court hearings. The court proceedings should be in private and the committee suggested that it should be referred to as the family tribunal rather than the family court.

The committee were of the opinion that these courts should be readily and easily available throughout the country where necessary and that would depend on demand. Concern was expressed by the committee about the cost involved in family legislation at present and they were anxious that these costs should be reduced. Obviously some cases would not find their way to court if there was a mediation service and that would reduce the costs considerably, but other ways could be found to reduce costs.

The committee were of the opinion that judges should be specially selected and that they should have special training having regard to the social and psychological needs of such a court structure. There should be a proper welfare service. At present there is a total lack of such a service not alone for dealing with cases of marital breakdown but for all cases of family law, particularly cases involving children. There is need for such a service to include social workers, psychiatrists, psychologists and other specialised persons necessary to give evidence.

The family is the basic unit in our society. This has been accepted traditionally, and special protection has been provided in the Constitution. In supporting marriage and family life and providing for problems in marriage, the Government can take action in a number of areas without any change in the constitutional position. There is a need for better preparation for marriage with eduction for relationships in the school curriculum. There should be more support and provisions for pre-marriage courses, so that persons entering marriage will have a better understanding of the nature of marriage. A comprehensive nationwide State-aided counselling service with trained and qualified personnel should be available. Voluntary organisations carrying out this work should have more support from the State. The Government should legislate on the age for marriage.

Where there are problems in a marriage and legal remedies are not necessary, the Government should up date the law on nullity. At present the 1870 Act is the law. The Government should have regard to modern medicine particularly psychiatry and psychology. They should also extend the grounds on which judicial separation may be granted as recommended by the Law Reform Commission and the joint committee. They should look at the Family Law (Maintenance of Spouses and Children) Act and the Family Home Protection Act with a view to amending them to make them more effective. A mediation service should be provided. As a matter of urgency the Government should establish a family court as outlined in chapter 9 to deal with all types of family cases. There is no reason for delay in establishing such a court, not alone for problems arising from the breakdown of marriage, but for many other cases as well, particularly those involving children.

There is a positive thrust throughout the report of the Joint Committee on Marital Breakdown which I hope will not be lost sight of in debating the more contentious issue of divorce. While it is for the Government to decide whether to hold a referendum, I would like to see them improve the laws in the areas I have outlined.

Minister of State at the Department of the Taoiseach (Mrs. Fennell)

I am the first speaker to speak on this debate who is not a member of the Joint Committee on Marriage Breakdown. In welcoming the report of the Joint Committee on on Marriage Breakdown, I commend the entire committee for their work, which involved long and often tense meetings, and I express my appreciation to Deputy Willie O'Brien as chairman of the committee. It was no secret that he performed a difficult task with great tact and patience. To Mr. Rory MacCabe, who was clerk to the joint committee, and to its legal adviser, Mr. Gerard Durkan, must also go thanks. Acknowledgement is due to the many individuals and organisations who submitted views and very important documentation to the committee. Deputy O'Brien has already put that on record. There were 700 written and 24 oral submissions. Many of the individuals and organisations involved have for many years been working in a voluntary capacity with victims of marital breakdown — the Catholic Marriage Advisory Council, Gingerbread, AIM Group, Adapt, Divorce Action Group, to mention only a few.

I attended most of the Seanad debate on this report, which ended last week, having begun on June 27 approximately three months after the completion and publication of the report. During the 19 hours of that debate more than half the Senators spoke, and most of the speeches were thoughtful and honest contributions. A high degree of understanding of Irish marital difficulties and a great sense of care came through in most instances. It was a comprehensive and tolerant debate and I have no doubt we will follow that same tone here in the Dáil.

A great deal has been written and said about this green-covered report since its publication. It was delivered in a climate of dismay and disappointment. This may be due in some part to the fact that the duration of the committee, which originally was 12 months, was extended on four different occasions, but it was also, because of unreal expectations of the media. The report suffered, not because it was not a good report, fulfilling the requirements of its terms of reference, which were "to consider the protection of marriage and of family life and to examine the problems which follow the breakdown of a marriage and to report to the Houses of the Oireachtas thereon", but because it did not give a strong and absolute recommendation on divorce.

The committee did the best they could and have given us for the first time in the Oireachtas a detailed landscape of Irish marriage, Irish marriage laws and remedies for breakdown. They have done much more. They have put the subject of marital breakdown onto the political party agendas, made it an issue that will almost certainly not go away and created a demand that cannot be ignored. As someone who has taken a very active interest in the problems of people in marital break-up for the last 15 years, I find it regrettable that it has taken so long to bring political focus to bear on this issue.

Our laws and social policy on marriage and the family have for years lagged behind countries with a similar legal system to our own. It was not until 1973 that the lid was taken off Irish family life and Irish society was forced to accept that we had indeed no immunity to unhappy marriages. One organisation more than any other, the AIM Group, of which I was a founder member, brought this problem out of the closet during the seventies. This organisation was set up with the specific objective of tackling legal inequalities suffered by Irish women, particularly in relation to maintenance in marriage, security in the family home and legal redress for marital violence. Their early campaign contributed to the political response in the form of the Family Law Act of 1976 and, as the all-party committee report shows this legislation enacted by the then Minister for Justice, Deputy Patrick Cooney, proved an enormous breakthrough and, although not entirely without flaws, has stood Irish marriage well since then. The serious and well-sustained campaigns orchestrated by organisations like the AIM Group, Adapt and FLAC contributed greatly to the realisation of the Family Law (Maintenance of Spouses and Children) Act, and the Family Home Protection Act, 1976.

On an official level, in 1973 we had the 19th interim report of the Committee on Court Practice and Procedure, "Desertion and Maintenance", chaired by the Hon. Mr. Justice Brian Walshe, which found a need for radical changes in legal provisions relating to maintenance, court hearings, maintenance limits etc. Indeed, many of the same organisations and individuals appendixed in this report made similar submissions to that committee in 1973.

We can clearly see that in terms of family law reform, 1976 was something like a vintage year, after which, during the Fianna Fáil administration from 1977 to 1981, only minor changes were introduced — an Act extending barring orders and introducing protection orders and the Courts Act, 1981 giving the Circuit and District Courts power to deal with family cases for separation, succession, maintenance, guardianship, affiliation and the family home. It was not coincidental that it was a Coalition Government of Fine Gael and Labour which responded to the public campaign of the seventies. I would like to believe that a Fianna Fáil administration would have tackled the issues then, but I very much doubt it and feel that any reforming zeal of earlier Fianna Fáil Governments, which admittedly gave us the Married Women's Status Act in 1957 and the Succession Act in 1963, has been long dissipated. That party now have a sterility about policy on social issues which is sad to observe. In this context, I would comment that this morning's papers reported that at the Fianna Fáil Parliamentary Party meeting yesterday an instruction was given by the Leader of that party that members of the party should abstain from a vote. That is extraordinary coming even before they have listened to the contributions to the debate.

Mr. Flynn

That is an inaccurate report.

Mrs. Fennell

That is an extraordinary instruction before they hear the details of the debate. I do not underestimate the changes we are being asked to face up to now — but I cannot underestimate the legislative changes of the seventies either. I recall considerable opposition and hostility to the notion of a woman having a statutory right to maintenance in marriage and to certain security in the family home. Even then some people were suspicious that this kind of change was the thin end of the divorce wedge. It took a sustained campaign to educate public opinion on those issues and the cause was undeniably strengthened by people who were affected by our legal system speaking out as their own best advocates. Thousands of wives identified an Irish form of divorce, where husbands deserted by taking the boat to England, never to return, nor to maintain their families.

As I said, pockets of opposition ten years ago were overcome by reasonable argument and a fair presentation of the facts. Nobody now challenges the right to maintenance in marriage of both spouses; no-one now challenges the right to security of the family home and no-one now challenges the right to protection from violent spouses. These were the issues fought for and won in the seventies.

The issues needing the same public debate in the eighties are related to the case for and against divorce. From the nine chapters in the report we have a range of proposals which merit very thoughtful consideration. I hope that members of the House will have read the report and be familiar with the arguments and analysis contained in it. I know that many Members will want to contribute to this important debate and I do not intend to examine each chapter in detail and comment on all opinions. I would like, however, to refer to a few areas in chapters 3, 4, 7 and 8.

One of the most important parts of the report, indeed central to its terms of reference, is chapter 4, "Marriage Breakdown", which deals with factors which contribute to the breakdown of marriage. It makes essential reading. If I had a criticism of the report's content it would be that this section was not developed as well as it might be. I accept that the committee may not have had the scientific and social data about the factors that contribute to disharmony and break-up in Irish marriages, but they left out, or did not fully develop, important factors, like why is there so much abuse of alcohol? What are the root causes, or how do our sexually repressive attitudes influence relationships in marriage?

It might have been expecting too much in this type of report to have had an explicit examination of modern woman's role in the insititution of marriage, which was structured and has developed to a form that takes little or no account of woman's liberation. I have seen again and again marriages which deteriorated and die because the structure of traditional marriage — that is, the husband as head of the home and dominant decision maker, and the wife the supportive and subordinate partner — allows little or no room for a woman's growth and development in her twenties and thirties. In too few cases in Ireland is there an awareness by husbands of the need to develop a partnership or team approach to marriage. Too often I have seen Irish husbands take advantage of a wife's financial vulnerability as a mother to dominate her totally. Too often the limited choice for her is between leaving the home or being dominated. In general, Irishmen as husbands have great room for improvement.

This is evident in the legions of deserted wives, in the number of women in battered wife's refuges, among the numbers of married men who father children born to single women. Thousands of women working in the home do not know what their husbands earn and, when it comes to family planning, it is still regarded in the main as a woman's responsibility to take care of contraception if she does not want to have more children.

I make these points to be constructive, because all the negative aspects of Irish married life must be put under scrutiny. If our single sex schools still foster in boys the model of the tough macho man who regards women as objects, and see themselves marrying a wife in the traditional mould, then we have to recognise this as a problem, because it is a problem for Irish women and Irish marriage.

I believe educational programmes are necessary to prepare people for the single most important commitment in their lives. Given that the committee's motivation overall was to ensure the preservation and protection of marriage and the family, the emphasis was rightly placed to a great degree on education for marriage from an early age and promoted through the school and through the home. In the same context, marriage counselling services will have to play a greater role in the future. I would like to pay a warm tribute to the various counselling services and to the dedicated people in them who work voluntarily and with great dedication over the years on this service.

I was gratified to note the depth with which the committee dealt with the question of mediation, devoting an entire chapter to it. I know this reflects the fact that it was a recurring theme in the submissions. I have long recognised the need for mediation facilities. To quote the definition of mediation, it is a process which aims to assist parties to deal with the consequences of an established breakdown of their marriage. Its aim is to reduce or remove bitterness and hostility between a couple and help them to negotiate mutually-agreed decisions about their children, maintenance and property, without going through the expense and confrontation of court proceedings.

I am happy to say that here a small start has been made in providing such a scheme. I appointed a steering committee last January under the chairmanship of a solicitor, Jim O'Higgins, to examine mediation systems elsewhere and report to me with a view to putting a three-year pilot mediation scheme into operation here. I received a detailed report at the end of October from this committee and hope to announce the commencement of the scheme very soon. I would like here to commend the chairman and the committee for the speed and efficiency with which they undertook the work.

Before turning to the subject of divorce, I would like to respond to comments expressed in the Seanad debate regarding what action can be expected on proposals in other areas of the report. Senator McGuinness asked if an inter-departmental committee could be set up to plan a course of action, while Senator Robinson suggested a discussion paper might be an appropriate outcome. I think both of these proposals are worthy of consideration, because they take account of the fact that the report's proposals extend over a number of Government Departments, as well as into my area of family law reform in the Department of Justice. I am personally concerned that many of the opinions expressed, particularly those relating to chapter 7, "Legal Remedies" touch on my responsibilities as Minister of State for women's affairs and family law reform. Deputies will be aware that there is a certain overlap between the work of the Oireachtas committee and the work of the inter-departmental committee on women's affairs and family law reform, which I chaired and who reported last may.

Chapter 10 of my report, "Irish women: Agenda for practical action”, deals with family law reform and much of what it says is equally relevant in relation to the opinions of the Oireachtas Joint Committee, given the fact that in dealing with the consequences of marital breakdown and, on the other hand, ensuring proper preparation and better support for couples, we are considering policy areas which are the responsibilities of a number of Ministers and Departments, primarily Justice, but also Health, Social Welfare and Education, and it is, therefore, important that a co-ordinated approach be adopted which will bring together all the various threads to be pursued at Government level.

This report has illustrated in a very graphic way the need for a better administrative structure for dealing with family law reform. Since 1976 we have experienced a hiatus in the development of a programme of law in this area. To many people inside and outside the official system the process of actual preparation of legislation can seem interminably long, but the reality is that legislation relating to marriage, property, status of children and separation, is complex and requires detailed and prolonged study. Having been involved with Deputy Michael Noonan, Minister for Justice, since January 1983 in establishing our legislative priorities, and since then pursuing a programme of law reform for this administration, which will meet many of the report's proposals, I see a need for a new perspective for dealing with family law reform, both in terms of monitoring existing legislation and long-term planning. I am confident now that after almost three years of careful preparation an important programme of legislation will be enacted in the next 12 months.

On the issue of family courts, we have no specific proposals. In view of the fact that proposals on family courts or tribunals have been a consistent thread in proposals for family law reform over the past ten years, and the arguments in their support are very persuasive, I believe an examination of a family court structure is deserved. The Law Reform Commission in their first programme identified family court structures as an area they would consider. At a time of unprecedented pressure on public finances, it is not a path on which any Government can lightly give a commitment. Maybe procedural changes in the present system could be made to give a more human face to the process of law in the family area.

To refer briefly to legislation which is only marginally mentioned in the report, the Status of Children Bill, in the context of the effects on children of nullity cases, I believe that the Government in taking the initiative on this legislation to produce a memorandum and a draft Bill made a wise decision. The response to this discussion document has been very positive and, while final drafting has been slightly delayed by the late submissions from some important, interested groups, I am pleased that the public consultation and responses will lead to many basic proposals being agreed. There is a good degree of consensus about this legislation and the various groups and individuals have expressed appreciation at being consulted and asked to help share the proposed legislation. That was a good approach and I would favour this approach being used more often.

Finally, the joint committee were of a majority view that a referendum should be held. The question is now one of timing, and that is a matter on which there are differing views held, both inside and outside the Oireachtas. The timing of a referendum is of central importance in this whole area of meeting the difficulties presently experienced by people in irretrievable marriage breakdown. Politicians have a responsibility first of all, to ensure that this debate is carried on throughout every part of the country. Our responsibility in leadership puts an obligation on us to ensure, as far as we can, that the electorate are fully aware of the real issues. We have a responsibility to be totally honest with the electorate and, whatever our individual views may be for or against divorce, not to mislead the electorate about the object of a referendum vote. It is not about introducing legislation for divorce, and anyone, lay, political or clerical, who interprets it as such for whatever reason will be doing a grave disservice to democracy and treating the Irish people as fools.

I believe that the Taoiseach is absolutely right in seeking as full and comprehensive a debate as possible, both here and in the country, on foot of the all-party committee report. Few people could be left unmoved when confronted with evidence presented to the committee on the desperate situation of thousands of Irish people, whose marriages exist in name only but not in reality, and I feel no group or party have a monopoly on care or compassion in this area. I would like to think, indeed I know it to be the case, that a substantial number of Opposition Deputies would wish to express their care and concern and support for change, and I honestly appeal to the leadership of Fianna Fáil not to encloister the party's free thinkers on this debate as was done on the family planning amendment. I feel that it is inappropriate to use this issue for political point-scoring.

My personal views on divorce are well-known. The absolute prohibition on divorce has no place in our Constitution. The Oireachtas must be free to legislate as it sees fit. I could not pretend to have any other view on divorce, given my involvement with deserted and battered wives and the insights I have gained into how our unjust laws disadvantage them.

I understand and empathise with the need for divorce legislation because we have for too long ignored couples living in stable family unions where one or both partners have been previously married. Do these couples not have a right to the dignity and security of legal recognition for those unions which other married people enjoy? It is unacceptable and unjust to condemn a person who may have contracted a bad marriage at an early age either to a life of celibacy or an irregular and unrecognised relationship, frequently bigamous.

Furthermore, we have that easily recognisable group, and they number thousands, people who secured Catholic Church annulments and subsequently remarried in the Catholic Church, whose position in itself would justify action to afford them proper legal protection.

Irish society in the last decade has moved away from socially victimising and isolating couples whose marriages break down. Every village and town community in Ireland has first hand evidence of the incidence, and in a majority of cases I know, communities deal with this problem in a good and thoughtful way. I hope that all those communities, large or small, understand that in the debate to come a discussion about divorce is not about a distant legal provision. It is about affording a right to a choice of remarriage for the deserted father or the separated battered wife who lives in their neighbourhood, their parish.

This report is a valuable milestone and will help, as never before, to ensure that we evaluate the phenomenon of marriage breakdown. Some people, both inside and outside the House, may cynically suggest that nothing has changed, no move forward has taken place in the last ten years. This is just not true. Anyone who worked in the climate of the mid-seventies, and there are many people in the House who remember that bias and the prejudice of then and other times since, must welcome this report and the work of the committee as a great move forward and, recognising the role we have to play, will give a commitment to be honest and fair to the people who put us here.

Proinsias De Rossa

On a point of order, will the Chair indicate when it is intended to let me in on the debate? My name is on the list.

An Leas-Cheann Comhairle

The next speaker is Deputy Flynn who will be followed by a Deputy from the Government side and then Deputy De Rossa.

Mr. Flynn

The debate on this very important complex social question is to be welcomed and it is to be hoped that there will be a full exchange of views in an open, unrestricted and responsible manner. The debate will give an opportunity to Members to consider the many chapters dealing with education, counselling, and legal remedies available to the Legislature as well as the question of divorce and a constitutional referendum which has dominated the debate so far. A surprising amount of unanimity was achieved by the committee in the questions of education, counselling, legal age of marriage, civil nullity, mediation, judicial separation and other legal remedies that were discussed.

The committee were also unanimous in so far as the setting up of a new family court structure was concerned. There is a heavy onus of responsibility on the Government to take particular notice of the areas where there was unanimity and, as a show of good faith towards family life and the protection of the family, then an immediate response is expected from the Legislature to implement reforms in the non-contentious areas.

Opposing views were expressed by various members of the committee, particularly in so far as some aspects of the legal remedies chapter were concerned, but this is precisely why the committee were set up, to hear these opposing views and to have the arguments recorded and so to advise the Oireachtas as to the best way of tackling some of the problems. The area that led to the greatest diversity of opinion was, of course, the divorce issue. Unfortunately, there was some attempt made to ridicule and minimise some the opinions of those who were opposed to the introduction of divorce legislation here, but happily those attempts were not successful. It is the Government's responsibility to initiate the process for change in all the matters referred to in the joint committee's report and it is for that reason that no recommendations are included in the report. The orders of reference of the committee precluded the committee from making such recommendations. The various questions were examined and it is now up to the Government and the Oireachtas to act on the report if they so wish.

There has been a considerable amount of media coverage concerning the referendum and the divorce questions as dealt with in the report and some of that media coverage has been slanted towards the pro-divorce lobby. It is an articulate lobby and entitled to make its case, but it is certainly not entitled to more favourable consideration than the interests of those who see divorce as not a solution to marriage breakdown.

It is often suggested that divorce is inevitable here and those opposing the introduction of divorce legislation are represented as heartless, unsympathetic, uninformed and ultra right wing Catholics. This is not the case and, hopefully, this debate will not be reported on in that way. I am satisfied that fair play will prevail as far as this discussion is concerned.

There are those who genuinely believe that the majority of marriages which are contracted in this State are and will remain viable and stable and that divorce would not help in making marriage as secure and viable as is humanly possible. They have well grounded fears and, seeing that this opinion is held by more than half of the electorate in the country, then that opinion should get equal media space as the other side of the argument. It has to be admitted that prominence has been given to the divorce lobby. Maybe the fault lies with the anti-divorce lobby in that they have taken a more conservative view, relying on Catholic Church spokesmen, rather than articulating a response in their own right in the mistaken notion that it is a religious problem only. Now least some of the erroneous concepts being pushed by some commentators will be unmasked for what they really are, misrepresentations and misinformation concerning divorce generally. The committee have, thankfully, reported at last, but to put it mildly there was an uneasy peace in the committee from the very start. Unfortunately, there were some people working in the committee whose only interest was in the introduction of divorce legislation irrespective of what the consequences might be. This was obvious at the beginning and it is a tribute to those who were more restrained that the committee finished their work at all and that the report was finally published.

In the chapter dealing with the opinions of the committee in so far as divorce is concerned, the two most important decisions of the committee must be clearly stated at this time, first, that there was a majority of the committee in favour of holding a referendum, but second, that in that majority there were those who made it quite clear that this point of view did not necessarily imply their support for divorce. Indeed, some of those who favoured the holding of a referendum because they thought it was the democratic thing to do felt quite strongly that there was no need for divorce legislation as it was unnecessary and undesirable at this time. Others felt that a referendum at this time would have divisive effects in the community, that it was doomed to failure and that there was no point in proceeding with a referendum, the outcome of which was to be in the negative in so far as removing the constitutional ban on divorce was concerned.

All the committee were agreed that the question of divorce would be socially divisive and that deep divisions in the community would arise. No recommendation was made as a sizeable majority of the committee believed that the whole question of the holding of a referendum was a matter for the Government of the day to initiate the legislation and for the Oireachtas to decide the matter democratically here in Dáil Éireann. That is still the position that persists in the minds of many of the members of the committee. However, all were agreed that the basic emphasis of Article 41, of our Constitution which pledges support to the family and the institution of marriage and the recognition of the family as the natural primary and fundamental unit group of society, should not be altered or diminished in any way.

The majority of the committee were not in favour of divorce legislation as being either necessary or desirable in the State at present. There was no consensus on the question of the introduction of divorce legislation and this, in effect, would reflect what is now generally regarded from the opinion polls as the current position of the electorate in the matter. Some of the arguments in support of and against the introduction of divorce are set out in the report, but I would have to say that the chapter is too short and contains very poor quality of analysis of the arguments for and against divorce.

Listening to many commentators one would think that a very careful statistical analysis had been carried out as to the numbers involved in marriage breakdown in this country. The opposite of course, is the case. The report itself states that the incidence of marriage breakdown in Ireland is not easy to assess.

The committee also state that they did not have available to them comprehensive and detailed statistics on marriage breakdown. The figure of 70,000 people involved, or 35,000 families, is the figure offered by the Divorce Action Group in their programme of activity pursuing the introduction of divorce. There is no scientific basis for this figure and it should not be pursued as it is misleading and incorrect. The Labour Force Survey of 1983 and the National Census in 1981 are the two most reliable statistical data available and these would indicate that the problem has a much narrower number base. The overall estimates in the figures for every married person returned as separated — and that includes divorced — are 8,300 males and 12,800 females, giving a total of 21,000 persons. Whatever the true figure is, it is too high, but to suggest that one in every 14 families has broken down irretrievably is bordering on the ridiculous and should not be pursued.

The committee on more than one occasion were strongly advised by me to undertake a statistical analysis of the incidence of marriage breakdown, but chose not to do so despite the fact that an experienced researcher was willing to make herself available to carry out the study. The money involved was small, but regrettably the committee as a body did not think it worth while to have this important data available for the report. How one can quantify the efforts needed or the financial involvement in dealing with the problem without knowing the extent of the problem is difficult to understand. It is hoped that the next census will seek to ascertain precisely the incidence of marriage breakdown in the country.

Some of the arguments are to say the least, ambiguously expressed in favour of divorce and the arguments are endorsed without significant qualification or scrutiny. The arguments on both sides should have been confronted and the general public must be disappointed with this section of the report. To accommodate both sides of the argument and to finalise their report, the committee simply set down some arguments as stated from both sides of the divide and left them without any real critical analysis.

From the many submissions made to the committee in support of divorce it can be seen that there was virtual unanimity in support of a no fault divorce system. There was no real level of support for a fault based system and so the question comes down to this: it is expected by those supporting divorce that if divorce jurisdiction is to be introduced it will be a no fault system, or perhaps a no fault system with a small measure of fault based grounds. The impression is often given by those supporting divorce that there are no effective remedies whatsoever available to deal with the problem of marital breakdown and that the introduction of divorce will supply all the remedies for all the difficulties attached to this problem. Nothing could be further from the truth and it has to be stated clearly that if divorce were introduced in this country it would not provide a solution to marital breakdown. It is misleading to suggest that divorce can address itself to the whole range of problems associated with the break-up of marriage.

There is a huge volume of legislation in place at this time which deals quite effectively with many of the problems and disputes that arise in marriage, such as the custody and upbringing of children, the maintenance of dependent spouses and children and the protection of spouses and children at risk of violence and neglect. There are many other areas of legal reform that need to be attended to and these are outlined and have been accepted almost unanimously in every case in the report, but it must be clearly understood that divorce represents another legal reponse to marital breakdown, not a replacement of the other legal processes. The basic question is: do we believe that divorce which, in effect, means the legal entitlement to remarry is the best way to confront all the problems of marital breakdown and is it better than reforming the existing laws in other ways and taking steps to really give effect to the entirety of Article 41 of our Constitution?

It is hard to find the citizen who will state that the State has itself fully lived up to the demands made on it by Article 41 in protecting the family.

It is worth considering in some detail the major arguments which have to be considered in the debate on the possible introduction fo divorce legislation. The report is definitely weak in the lack of reference it makes to the empirical studies on this very important issue. There is considerable experience of divorce based on the breakdown of marriage in many countries and the situation does not have to be analysed in the abstract. There is an enormous amount of empirical evidence, though still not as much as I or anybody else would like, as to how divorce, based on the breakdown of marriage, actually works out in practice. Much of this evidence is not recorded in the report and there are many theoretical assertions in the report which have long since been refuted by the facts.

The financial implications of divorce for divorced husbands and wives and their children are of critical importance. Those supporting divorce will say that divorce results in financial difficulties for wives and children anyway, but that marriage breakdown without divorce results in the same financial hardship. As far as they are concerned, the problem exists anyway and there is no need to be concerned about the effects of divorce in this context. On inspection this argument is seen to be false. Of course, marriage breakdown results in financial hardship. The question to be asked is: does the hardship increase following final divorce? It is my opinion that hardship increases considerably following divorce and things are made much worse for women and children in the situation of divorce. There is a considerable amount of international evidence in support of this view. Under modern divorce law, women generally are worse off financially. Older wives and wives with young children have fared very badly indeed in other jurisdictions. It has to be admitted that divorced men have fared a good deal better. The Law Commission Report in England in 1980 confirmed these findings. The relevant quotation is:

It seems that in practice even in time of high inflation, an application for variation is more likely to result in a decrease rather than an increase in the sum ordered to be paid. (Discussion Paper, The Financial Consequences of Divorce. The Basic Policy, para 28).

Studies carried out in the United Kindgom in 1979 and 1980 showed that divorced mothers of pre-school children fared worse of all and from the cases investigated almost 50 per cent of mothers with at least one pre-school child were dependent on supplementary benefit, as against 27 per cent of those whose children were aged five years and over. Under present English divorce law, divorced mothers have fared very badly indeed. Another vulnerable group is divorced women with large families. Studies have found that 31 per cent of divorced mothers with one or two children were receiving supplementary benefit while 40 per cent of divorced mothers with three or more children were not doing so.

It has to be clearly understood that the position in England, under their present divorce legislation, is that the financial obligations of each party to the other will be terminated as soon after the grant of the decree as the court considers it just and reasonable. In other words, it has come to be the case that there is a limit to the financial support to a specified period beyond which no support entitlements can be claimed. The law there now gives the court power to dismiss, without his or her consent, a spouse's application for periodical payments of maintenance after divorce. Their 1984 Act also amends the Inheritance Provision for Family and Dependants Act, 1975, so that the court, when granting a decree for divorce, nullity or separation, can remove the entitlement of a spouse to apply for reasonable financial asssistance out of a deceased spouse's estate, even when the spouse thus barred does not consent to being so disentitled.

What this simply means at this stage of the divorce situation in England, is that for a spouse to be barred from his or her statutory rights of inheritance under the 1975 Act is now the order of the day. Whatever the divorce lobby might say about having curtailment of the divorce legislation here it is inevitable, and has proved the case in every other jurisdiction where legislation has been introduced, that sooner or later we will follow slavishly, existing models. That being the case, women are certainly placed at great risk. On this we must conclude that the overall amount and the duration of maintenance for divorced women and children is likely to be reduced still further in England from its present unsatisfactory level and that the situation would be somewhat similar in this country after divorce legislation, if it were ever introduced here.

It is as well to put the relevant statistics on the record. In England and Wales, in 1982, there were 146,698 divorce decrees made absolute which affected 158,268 children under 16 years of age and 27,898 over 16 for that year alone. Recently in England a judge ruled in favour of a man who said he could not support both his divorced wife and children and his new wife and children in a case brought by the former wife. Therefore it is easy to see how women and children can be the main losers from the introduction of divorce legislation.

The experience has been the very same in the United States where studies have proved that, while considerable financial security existed for former husbands, children and former wives were reduced to the virtual poverty line. It has been firmly established in the United States that, while women can leave unsatisfactory marriages in divorce jurisdictions, the reforms there failed to address the economic, social and emotional impact that divorce has on women. A man's earning power may increase during the course of his marriage but it is often the case that a woman's income remains constant or even decreases in many cases. It can also be said that marital instability can have a more pronounced social and emotional impact on women than on men, for example, a divorced 40 year old man occupies a decidedly different position in society from that of a 40 year old divorced woman.

Let us consider the position of older wives who are not financially self-sufficient, as is the position of many wives in this country. It is always suggested by those who propose divorce as a solution to marriage breakdown that these women will be looked after, but the facts have proved otherwise in every other country where divorce legislation exists. Where husbands have a very substantial income about half of the women received sufficient support but, in every other case, women had reduced standards of living: Many received nothing at all financially by way of support. It is these wives with the least economic clout, namely older wives and wives with young children, who have fared worst with the introduction of divorce based on marriage breakdown in other jurisdictions.

Divorce is simply to enable people to remarry. When the commitment for life support is withdrawn, as it is in the divorce situation, then the commitment to support is seen as frustrating the chances of the second and subsequent marriages. It is logical to expect that, after divorce, the second marriage must be given every opportunity to thrive. If so, then there has to be a restriction on the entitlement of the first wife and children in so far as support is concerned. If we accept that divorce ends a marriage then it is very difficult to see how one could argue that the former partner's needs should come first or should even come equal to the requirements of the second wife. Naturally the divorced person who remarries would put his new partnership first, the second family taking precedence over the requirements of the first marriage. It becomes obvious that in time the obligations of the former partner become limited in financial support.

This is the way it has happened in the United States, in the United Kingdom and in other countries where there is divorce legislation. There is no reason to suspect that the situation would not be the same here. Women and children of the first marriage in these other countries fare so badly and, in serial marriages, husbands are unable to support two or more families at the same time. Financial burdens placed on individuals are enormous. In all probability it means that the second marriage will go the same way as the first.

That is exactly what has happened in the United Kingdom where, two years ago, 33 per cent of all the marriages that took place had a divorcee involved. Within two years half of those marriages had failed for the second time. Serial marriages transforms a commitment for life into a limited commitment, revocable at will, by either party. To turn marriage into a temporary contractual arrangement, revocable at will, had serious implications for wives and children. It has psychological effects on them and also affects their financial support.

Irrespective of how we might draw up the law here to have everything possible done to protect wives and children, there is no way we can succeed in having the same value placed on the first marriage as on the second marriage following divorce. When legal superiority applies to the second marriage, then the obligations to the first spouse and children must be diminished. That has happened in every other country where divorce legislation has been introduced.

The situation that obtains here at present in so far as surviving spouses are concerned means that they have considerable protection under the Succession Act, 1965. Divorce would damage the succession entitlements. Again international experience shows that succession entitlements generally are reduced with divorce. Everybody talks about finalising broken marriages and doing so with the minimum of bitterness and distress. I put it to the House that, when one destroys something, it is inconsistent that one would retain, for the duration of the former spouses' joint lives, any entitlement to succeed to each other's estate. Within a legislative framework it might be possible to insert some safeguards in this area. Inevitably, however, there will be a reduction of succession entitlements. This has proved to be the case where it has been tried.

Many of the problems attached to marriage breakdown can be resolved in other ways besides introducing divorce law. This would require the reform of the present law in many areas, but that is for the Legislature. Pointers have been given in this regard in the report but there has been no indication from the Government that they intend proceeding along this line.

I suggest that contemplating a referendum or divorce legislation in advance of taking all the other steps is flying in the face of the opinion of the committee in the report and would also be seen by the general public as less than a fair response. It is necessary to introduce procedures for conciliation, reconciliation, mediation, a non-adverserial procedure in our family courts, to abolish illegitimacy, to improve the provisions relating to civil nullity and barring orders, to have reforms in the law of maintenance and to change the age for marriage. We need to have reforms in so far as the property rights for married women are concerned; we need to improve the protection of their rights to reside in the family home. These last two rights will be attacked if there is an introduction of a divorce jurisdiction since the basic philosophy of divorce, based on the breakdown of marriage, is that the second marriage has greater importance than the first and that where there is no life long commitment then there should be no life long support.

Experience shows that divorce laws cannot be controlled and in many countries where divorce exists it was always the intention at first to limit it to cases of hardship and injustice. Attempts were made to prevent other spouses from obtaining divorces but it is now universally accepted that these attempts to limit divorce must fail. That statement cannot be challenged because it is a fact. If you follow the United Kingdom progression from 1857 to 1984, in so far as their divorce legislation is concerned, then the point is proved. You cannot control the escalation of divorce laws and making it easier and easier to procure divorce cannot be controlled.

Countries which had fault based systems of divorce have changed to the no fault system based on the breakdown of marriage. In many countries you can now get divorce on demand or by waiting for a certain period of separation and complying with little requirements that may be laid down as far as conciliation or reconciliation procedures are concerned and this in effect is what is being suggested as the system for operation in Ireland.

It is always attempted at first to limit the scope of divorce and so minimise the hardship or injustice, particularly in so far as the welfare of children is concerned, but international evidence has proven that after a limited period of the first phase legislation, the inevitable will happen and that the limitations placed on the demands for divorce will be quietly eased over a reasonably short period of time and of course this is inevitable when one considers the valued judgment on which the system of divorce based on breakdown of marriage is based. The attempts to place discretionary bars on the legislation have failed because the dominant value, that is the freedom of the individual to place his or her own desires above the interests of the other members of the family, have always triumphed and they will triumph here as well. They will force the Legislature in a very short time to make it easier and easier to qualify for a divorce decree. If the second union is to be given pride of place, then the first spouse must be sacrificed.

It is the usual argument for those supporting divorce to say that the law should be there, but that if an individual thinks it is harmful that he or she need not avail himself or herself of it. This is a view which regards divorce as the optional extra, but it can never be regarded as such. The effects of divorce are not limited to those who want to use it. One always has to consider the spouse who definitely regards divorce as socially damaging, in other words, it may suit one and not the other. Is not the spouse who is very anti-divorce just as entitled to his or her opinion and to his or her value judgment as the party who feels that it is socially beneficial for him or her?

Divorce transforms marriage legally and socially. Legally it is no longer a binding commitment for life and is transferred into a temporary contractual arrangement which can be revoked by either at will. This is a fundamental change in the whole concept of marriage as we now know it. Under divorce jurisdiction it becomes legally impossible to contract a life-long marriage. It destabilises the marital commitment and causes injustice and hardship to spouses and children, whether they object or not. It is always socially damaging for the divorced spouse who opposes it. His or her values are given no weight and they end up in the no status wasteland of dispossessed persons. Many constitutional changes would be necessary if divorce were to be permitted in this jurisdiction. The report of the committee makes it quite clear that it will not be sufficient merely to remove the negative prohibition on divorce contained in Article 41.3.2º because it would still be possible for the remainder of Article 41 to be relied upon so as to have divorce legislation struck down.

It has been suggested that this problem could be solved by the deletion of Article 41.3.2º and the substitution for it of a positive stipulation. However, the fundamental weakness of this is that that type of Article would give the Oireachtas absolutely unlimited power to legislate in relation to the dissolution of marriage and that legislation could not be subject to the review of Article 41 or any other part of the Constitution. That, in effect, would amount to the suspension of the entire operation of the Constitution in relation to what is regarded as a very important area of life and would end up robbing everybody of the constitutional protection which everybody agrees is essential. A substitution of a positive subsection which would guarantee no limitation or restriction on the right of the Legislature to bring in laws providing for the dissolution of marriage would diminish the value of the Constitution in its entirety. Once the Constitution is breached in this way you could have similar types of amendments to other Articles and in effect it would eventually emasculate the Constitution.

Article 41 in its entirety has to be protected as it is the fundamental basis of the various legal protections enjoyed by the family. Surely nobody can suggest that this Article can be thrown out in its entirety or diminished in its value by subordinating it to a subsection that would render it useless? A whole range of taxation, reliefs and benefits for families are based on Article 41 as are the relationships between husbands and wives for the benefit of the family guaranteed through a variety of enactments which deal with children, maintenance, protection of spouses and children and the succession to property. These are undertaken in support of and because of the fundamentals in Article 41. An anomalous situation would clearly arise if Article 41 were amended in such a fashion. One clear result would be where the State would be involved in various kinds of taxation reliefs for two families with resultant financial expenditures that have not yet been estimated by any authority.

However, they have been estimated so far as the United Kingdom is concerned. Two years ago divorces involved an expenditure of £2 billion, with children in care costing up to £200 million in one year. There have been no costings in this report or by anyone else as to the financial commitments caused as a result of removal or the diminishing of Article 41. It can be assumed that any anomalous situation that did occur would be removed but that could only be achieved at the expense of one of the families involved and no doubt the divorced family would once again be the one to suffer from the hardship.

Everyone wants to retain the force of Article 41 of our Constitution. The committee unanimously agreed to that but, if this happens, the other anomaly appears when Article 41 is retained with a divorce jurisdiction. One has to consider the effects of the interaction between the divorce legislation and Article 41 as it stands, especially in the enactments that regulate the obligations of spouses to each other, particularly in relation to financial matters.

The anomaly results from the fact that where persons in average circumstances divorce and remarry resources are not available to maintain both families in the standard of living that one family on its own could enjoy. If Article 41 is to apply, both families get an equal proportion or share of the income with each having a lower standard of living or, alternatively, one family is selected to enjoy the bulk of whatever resources there are at the expense of the dispossessed family.

Because of what it stands for, divorce must lead to the family based on the remarriage being given the preference at the expense of the divorced family. Add to this the fact that Article 41.3.1º pledges the State to guard with special care the family based on marriage, and this would have to be interpreted to benefit the family based on remarriage at the expense of the divorced family as the marriage which founded the divorced family would have been dissolved. The result is that Article 41 would fail to protect this divorced family. It is not possible to retain Article 41 as it now stands and, at the same time, have divorce legislation. Consequently Article 41 will have to go in its entirety.

Certainly it is possible to have a reworded Article 41.3.2º which would protect divorce legislation from being struck down but Article 41 cannot be maintained so far as it affects the obligation of the State to the family and of members of the family to each other. Article 41 would have to be rewritten in its entirety or else it would have to be deleted in its entirety because what would be left would be meaningless.

In my opinion it is not possible to restructure Article 41 so as to maintain the same financial commitment to all family units as it does at the moment. Because of the limitation of resources of both the families and of the State and of the obligation of spouses to each other, any rewording of Article 41 must lessen the constitutional protection of the family and alter the whole concept of family and society as we know it.

Social legislation based on Article 41 such as that relating to adoption, the Succession Act, various taxation legislation and the social welfare code, together with many other measures, would come under review. I am satisfied that the Irish electorate is not prepared to pay that price at this time. The committee did not consider these fundamental questions in any great depth. Before any tinkering with Article 41 can take place the most thorough investigation should be undertaken into these and other related matters.

If the report is to act as a guide to the Oireachtas, changes will have to be made in the Constitution. They should be pointed our clearly to the people as should the possible impact these changes would have if a referendum was put to the people. It should be pointed out to the people what the legislation would eventually mean if there was a majority decision in favour of divorce. The report is short in this area. It does not point out the ramifications involved. It has failed in that regard. Before there is any tinkering with Article 41 the Irish people should be made fully aware of what is involved and of what is being suggested on their behalf.

Minister of State at the Department of Agriculture (Mr. Connaughton)

I am delighted to get this opportunity to say a few words on this very important subject. First, I should like to congratulate the members of the committee under the chairmanship of Deputy O'Brien. He had a very difficult task in bringing the various strands of opinion together into one report.

This report is an important document. In my view it would be desirable before any referendum or any other course is adopted that families in Ireland should study it. Reading the report one gets the two sides of the story and there are two sides. The members of the committee devoted much of their time to their work and the many thought provoking ideas they put forward are an indication of the problem that exists. However, there are various ways in which we can come to the same objective which is the alleviation of human hardship and suffering. One would have to be struck by the number of submissions made by the various interest groups — I understand there were approximately 700. That gives an idea of the interest aroused in the subject. It is a matter that is on the minds of many people throughout the country. It is not just a city problem. Many people generally perceive it to be something confined to our big population centres. That is not correct.

Of extreme importance is the fact that there were vast areas of agreement in the committee, but that has not got across. One would have thought from the media that they were at each other's throats.

Mr. Flynn

Not every day.

Mr. Connaughton

I am not an authority on this matter. In my public life I have seldom spoken on it. However, it is important that on this occasion all should express their viewpoints in the House. I had the privilege to be involved in adult education some years ago, particularly affecting family life in Tuam and district, and I know from that experience how many couples want to educate themselves in regard to the huge obstacles that come their way as families. As a nation we must be able to cater for the hunger for education in this respect. Obviously, our educational system has let us down concerning family and human relationships. We all know that despite the great strides made in our educational system, in the matter of relationships between men and women and within families we are losing the battle.

If nothing else, one of the important things the committee will have done is to start a debate on how the educational system could deal with family problems. This may sound like old hat to many, but it must be appreciated that family disagreements never seem to be in the limelight — they are taken for granted. Therefore, a massive job has to be done not through traditional education methods but on the basis that prevention is better than cure.

Many people are not geared for the relationships that marriage should impose on them and they have not available to them the type of training we should like to see in our educational system. When such people come to marriage, to the contract of marriage, they are totally unprepared to fulfil the obligations of the greatest single contract in their lives. Pre-marriage courses have become part and parcel of our system, but it is still true to say that were it not for the obligations placed on them by the Churches, particularly the Catholic Church, counselling is the last thing they would consider.

This is the fault of the system. Unlike the training people get for, say, badminton, heretofore people have been totally untrained to meet the most important state in their lives. Consequently, we have family problems and marital disharmony. We must rectify this. People are highly critical of the Catholic Church, in particular, and of other Churches, but we must appreciate the good work they do in regard to pre-marital education. If it were not for that we would have many more problems.

The committee referred to the environment in which people just married have to live and raise children. Environment has a great impact on how marriages turn out. The committee referred to the fact that there are thousands of happy marriages which are never spoken about. We know of people who are very happily married, and we must try to protect those marriages. Of course, we must consider those who, through no fault of their own, simply for natural reasons, run foul of each other and of the contract they have entered. I see such people in my work as a politician. We may not have so many problems in that respect in rural areas but let nobody think that there are not problems among families in the country.

The first thing to do is to ensure by every means at our disposal that happy marriages will be protected, and the proper environment is preserved for them to stay that way, and we will do the best we can to reconcile those who have problems. There are a number of aspects we should consider. We should come out very emphatically, for instance, on the minimum age for marriage. All of us seem to have views on this. I have seen people married before they were 18 years of age and it appears to me, a non-professional, that there is a greater possibility they will have difficulties than those who are more mature when they enter the married state. The problems have shown themselves especially in the past 18 years. We should be able to provide in legislation that except in exceptional circumstances, in which the courts would adjudicate, people under the age of 18 years should not be allowed to marry. We have a guideline in the new age of majority, which is 18 years. I hope we will be able to bring such legislation to the House before long, because it makes great sense.

The committee made recommendations on family law courts. It is obvious that we should not force normal families to go through the ordinary courts with all the attaching stigma of that process. Things would be different and relationships might be enhanced if humanitarian family courts were available. Many Irish people associate an appearance in court where there are people in wigs and gowns with criminal charges only and that is the last environment in which they wish to be involved in cases of family disputes. That may be an over-simplification, but every effort should be made to bring about a speedy reform in this area so that, instead of a court environment, there would be something on the lines of a conference or a discussion. In that sort of environment parties to a dispute would not have as many inhibitions as is the case now. They would be more willing to participate in that kind of procedure in the knowledge that they would not be subject to being held up to ridicule by the community generally. That is a very important aspect of the report.

Immediate action should be taken also in the area of mediation. As has been proved in terms of labour relations down the years, mediation is one of the most important factors in a dispute. The experience of the Labour Court has been that many disputes of an industrial nature are solved by way of mediation. It is difficult to understand why there has not been emphasis on this aspect in the area of marital disharmony. If a couple reach the state where they will not speak to each other, surely the intervention of a well meaning third party would be of great benefit. How that procedure would be structured is a matter that I am not competent to deal with but, if couples knew there was recourse to a third party in whom both husband and wife could confide, there would be obvious improvements in this whole area.

In the area of conciliation it is very important that the debate is not such that the subject matter seems to be above the heads of those whom we are trying to help. One of the great switch offs in Ireland is the type of high powered debate that might take place on such issues as contraception or divorce because perhaps 90 per cent of the people for whom the legislation or the possible legislation is intended find the debate above their heads. This is a factor that people in the media would be very well aware of. Therefore, I trust that the debate on this issue will result in the message going out from this House that there are people here who have great sympathy for those whose marriages have broken down and these people must be given hope of that sympathy being translated into action.

I put great emphasis on the whole question of prevention and I agree with a good deal of what Deputy Flynn had to say regarding the committee rightly identifying those areas on which we should move immediately. Family life is under attack from all sides. I do not propose to detain the House by speculating on the reasons for that, but it is becoming exceedingly difficult to impress on young people particularly that marriage is for life and that there are many good reasons why this should be so. If one takes at face value the life portrayed in the "Dallas" type programmes, one realises the problems, marital and otherwise, associated with wealth and they are the type of programmes that are very much in vogue.

One's upbringing perhaps can pigeonhole one into a certain mould, be it conservative or otherwise, but whatever may be our various philosophies, we must realise that there are many steps a caring society can take for people involved in this major problem of marital breakdown which in many cases is not of their own making. I submit that many changes could be made in the law relating to civil nullity, for instance, without making any reference to divorce. However, despite any such change, there will be many people who will continue to have marital problems. As a legislator I would have to be convinced that changing the law and allowing divorce in certain circumstances would bring happiness to those who up to now have been experiencing much unhappiness because of their marital problems.

However, nobody has convinced me so far that that would happen and neither does experience elsewhere lead me to that conclusion. We must face the fact that providing for divorce will not solve all the problems that I hear the divorce lobby talking of. If I believed genuinely that changing the law would mean happiness and reconciliation for the many families who are now in difficulty I would have to consider seriously supporting that change. I am apprehensive, too, about the figure of 70,000 families as being the number affected by marital breakdown, apart altogether from the numbers who are affected also by these situations, a number that would be impossible to quantify. I would be inclined to agree with Deputy Flynn that the number involved is not as high as 70,000 but it would not make any difference to me if it was 7,000 or 70,000 because, like every other Member of the House, there is a great responsibility on me as a legislator to do everything possible to ensure that whatever we do will represent the best way possible to lighten the load those people are carrying.

I am acutely conscious of the fact that there is a growing incidence of marital disharmony and breakdown and I am convinced that percentagewise these problems are as widespread in the rural constituencies as they are in the urban areas. Numerically, it might seem a bigger problem in the cities but it is just as prevalent in rural areas. The politician must respond to the thousands who have opted out of the family unit. As legislators we must try to understand the position in which these people find themselves. For the sake of the country generally we must help those who are now involved in new relationships by assuring them that they are wanted, supported and protected from discrimination in law. That is the minimum that a legislator should be obliged to do.

Surely it is wrong that in Ireland a liberal politician becomes a castiron liberal once he or she puts forward divorce or re-marriage as a solution to marriage breakdown. A politician who labours in Government or in Opposition for the betterment of town and country and who seeks to promote equality of opportunity in education can be put on trial on one issue by a surprisingly small number of vociferous people and adjudged guilty or glorious depending on the line he takes. I object to that. There are many people in my constituency who were dubbed right wing, prudish or Victorian because they sought to advance in public the doctrines that govern their lives. I have decided in the best interest of all parents, and especially young parents, that marriage forever is a safer road. I have heard it said many times in recent years that we will be the odd one out in Europe. Obviously that is something I cannot agree with. If one were to judge by what has happened in some European countries one could not say that divorce had been a great help. Obviously it helped some people but it did not help everybody.

Marriage has been unsupported and still survives. That is a very important statement. This matter deserves much more consideration. I applaud the work of the Law Reform Commission and the joint committee for their expert and patient examination of this subject. Those who opted for stable relationships need the protection of the law. That too is important. Many people have sound, stable marriages which should always be protected, and we should do everything in our power to help them.

I will conclude by making a few remarks on the Church-State relationship. I am one of those who cannot be critical of the Catholic Church because in the rural areas a great deal of the help and guidance given to couples experiencing marital problems is given by the clergy. Maybe that is not the most earth-shattering statement to make, but in my view it is true. I find it very difficult to criticise this body which has given great service in this area. Many people may criticise me for saying that but I believe it is true.

Our party, contrary to what may have been said over the years, would not want to provoke conflict with any Church and we have gone to great lengths to prove that. I want to put on record my admiration for the Catholic Marriage Advisory Council, CURA and the regional marriage tribunals who have worked extremely well within the confines of their terms of reference and without State aid.

Nobody has yet convinced me that there is a better road. I believe we can do much more. Time is running out and I hope this Government, and every other Government, will take note of the report of the joint committee and take action, certainly in the short term, more on the prevention than on the cure. As a politician who has seen many changes in the last ten or 15 years, I am sure this debate will continue for many a long day. I believe that any decision we take must be by referendum. If the people decide in their wisdom to take one particular course, then obviously the people have spoken and that is the highest ruling we can have. As I said, I am not sure divorce is the answer to our problems. In five or ten years time, having tried all avenues, we may still hear of great hardship and suffering. If at that stage we still cannot deal with this problem, then we will have to take another course. I feel great sympathy for people who are caught in this catch 22 situation.

Proinsias De Rossa

I welcome this debate and the report itself, although I intend to be fairly critical of it and its contents and some of its deficiencies. I urge that every Deputy, not just those who are present today, who are very few, should participate in this debate and put on record his views not only in relation to this report and the many issues in it, but how he sees the problems which marriage breakdown presents us with and how they can be resolved. It is not enough for half a dozen Deputies to come in here and express their views, and for the matter to be quietly shelved for another two or three years until it suddenly becomes an issue for debate again. It is important that we come to grips with these problems now.

I regret that the decision to have this debate in this form was made. We are debating this report by way of statements and when the debate is concluded — we do not know when it will conclude; it could be in a year's time depending on decisions made privately by the Whips — we will still not be in a position in this Dáil to make a decision on the problems we have discussed.

The decision to have the debate in this form indicates what only can be described as an obsessive reluctance by the major parties to avoid confronting the issue of marriage breakdown in a realistic way. The entire circumstances surrounding the establishment of the Oireachtas Joint Committee on Marriage Breakdown and through its life, to the arrangements of this debate, I feel have been characterised by what can only be called political cowardice and opportunism, particularly on the part of the largest party in this House, Fianna Fáil. This is opportunism of the worst kind because it ignores the real pain and anguish that thousands of people must face.

The efforts made during this debate and in the long time during which the committee sat will be concluded at some stage. At that point there must be a decision to take action. Everybody knows my position in relation to the kind of action which needs to be taken in relation to marriage breakdown, but that does not rule out many of the worthwhile suggestions and proposals made in the report, relating to education, conciliation, child custody, family courts and so on. They are very necessary reforms to family law. However, the crux of the issue is will we legislate for divorce?

Unless this debate results in some form of majority consensus in the House which will face the issue, we are continuing to avoid the problems faced by thousands of people caught in broken marriages. There were very many lawyers on the committee and there are many more lawyers in this House who will doubtless deal with the legal implications of the various proposals. I do not propose to do that because I am not qualified, but as a Member of Dáil Éireann who sees daily the anguish and pain of people trapped in marriages which have ended in everything but name, I want the removal of the ban which denies them the remedy to their problem.

Despite all the effort put into the report by most and perhaps all the members and despite the very useful consideration of areas relating to existing legislation on marriage, the family, nullity, separation orders, barring orders, succession rights and maintenance rights, in the long run the committee fudged on the fundamental issue which is the need for the removal of the absolute constitutional prohibition on divorce and the necessity for the Dáil to legislate to terminate marriages which have broken down. The nearest the committee came to acknowledging that fundamental issue was when, having discussed various problems which people in a new relationship face, they stated on page 85, paragraph 7.8.18:

...it is the view of the committee that simple legislative reforms cannot adequately solve the problems at present experienced by parties to a relationship, one or both of whom is still legally married to another person.

Unfortunately the committee did not follow through the logic of that finding with a specific and unequivocal recommendation for the removal from the Constitution of the ban on divorce and the legislative changes to allow people in this situation to remarry.

It must be stressed that the divorce debate as distinct from the question of dealing with the causes of marriage breakdown or the legal questions of custody, separation and so on, is essentially about the right to remarry and is not about the right to separate. No one can legally prevent a couple from separating, unless the couple are locked up, so the debate must be on the right to remarry.

Divorce is not offered as a cure for marriage breakdown. Neither have I heard a sustainable argument that divorce legislation per se causes marriage breakdown. It cannot be argued either that the absence of divorce legislation prevents marriage breakdown. That would be equivalent to arguing that, if we banned funerals we could prevent death, which is clearly nonsensical. One cannot prevent the death of a marriage by banning a remedy which a dead marriage needs to end it. A good divorce law can only regulate the aftermath of a broken marriage in such a way as to minimise the distress and trauma to all the parties involved.

Deputy Flynn made a very interesting contribution on divorce and the affects it might or might not have on women in particular. There is an assumption in what the Deputy said that the only people who would want to remarry following the breakdown of marriage are men. There is also an assumption that the only people who would either have the right to work or be willing to work following the breakdown of marriage are men. There is also an assumption that the only people who will get custody of the children following the breakdown of marriage are women. These assumptions underlie many of the attitudes being promoted by those who oppose divorce. This attitude is also enshrined in the Constitution in Article 41 which Deputy Flynn says had the unanimous support of the committee. I have reason to know some of the attitudes of some of the people on that committee and they would not be unanimously in support of all that Article 41 says. Article 41.2.1º says:

In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

That refers to women, not wives or mothers. We should be careful about what that means. The assumption there is that a woman's place is in the home and that society cannot survive without the unpaid labour of women in the home. I put it to Deputy Flynn and other Deputies who argue similarly about the financial straits in which divorced women may find themselves that that Article and the assumptions underlying it have more to do with the financial straits of women whether divorced, separated, deserted or, indeed, married than any legislation which we or any other State would pass.

Mrs. Barnes

Hear, hear.

Proinsias De Rossa

Article 41.2.2º provides that:

The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

The assumption there is that women who work in the home are not engaged in labour, that in some way what they do is not quantifiable in financial terms and, because they happen to be born women, automatically for the rest of their lives they assume the duties of running a house and rearing children and must accept the second class status which women in our society generally have. It is in our Constitution, and Deputy Flynn says that there is unanimous support for those assumptions and the thrust of this Article in our Constitution. I argue that that is not the case, that more and more women in our society are not prepared to accept the assumptions underlying Article 41 whether it relates to divorce, their so called duties in the home, or their obligation to labour unpaid in the home. This Article refers to the great work a woman does in the home and how she must be protected, and it will not provide even dental, medical or opthalmic services for the women in the home unless she becomes pregnant.

The main debate today is around Article 41 paragraphs 2 and 3. You cannot separate those paragraphs and the arguments against divorce from the Article which I have quoted which clearly places women as second class citizens who have no rights fundamentally outside the home. The Constitution talks about women — not mothers, not wives but women in general as a species, half of the human race. Deputy Flynn talked about the financial repercussions on women as a result of divorce legislation and he quoted a considerable number of statistics which he said proved, in his opinion, that divorce would leave women worse off than the present situation. He did not present any evidence to show that they were worse off as a result of divorce legislation than they would be or are as a result of desertion, or of separation, or as a result of the operation of the Roman Catholic Nullity Tribunal. Women and children have absolutely no rights as far as that tribunal is concerned. If it rules against the marriage, then in its view the marriage never existed, the children are no longer legitimate and they have no rights to maintenance or protection of any kind from the former husband, which is a contradiction in terms because, if the marriage does not exist, he was never the woman's husband. Deputy Flynn presented no cause and effect for his statements in relation to financial consequences for women. He offered them as his opinion.

Consider a woman who is deserted has two or three children and is on deserted wife's allowance and getting £60 a week from the State. How much better off is she without the right to remarry than if she had the right to remarry? In what way would the right to remarry improve or worsen her financial situation? In no way whatsoever. There is no cause and effect.

Another speaker from the Government side indicated that family life was under threat from all sides. He did not go into details as to how he saw that was the case, and there is little doubt that it is so. He blamed our education system for that. He went on to say that he would not blame the Churches in any way for that because in his experience the Roman Catholic Church in particular helped people in distress in pre-marriage courses and so forth. I suppose that is true to an extent, but the other side of that argument is that from the age of four, five or six to 18 years our children go through an education system which is controlled almost totally by religious authorities, Roman Catholic, Church of Ireland, Jewish or whatever. They are the people who presumably are forming the character of the pupils going through their hands.

Indeed, their argument for retaining control of education is that they have an obligation and a right to ensure that the people who practise their religion have their character formed through the education process. Therefore, if the education system is defective in teaching relationships and how people should relate to each other, what a loving relationship is and is not, how to differentiate between the romantic thrash we see in "Dallas" and so on, the people who control our education system and the ethos of that system are at the same time offering fire brigade actions when marriages get into trouble but generally — not in all cases —, the same people, in relation to the Roman Catholic Church at least, refuse adamantly to consider the necessity for a legal remedy for those who want it when marriages break down.

I stressed in the debate on family planning that it is not the purpose of anybody in this House or anybody who favours divorce or does not favour divorce to force our moral position on other citizens of this State. This House has an obligation to legislate for every citizen of this State, and it cannot be argued that because a particular Church has a majority amongst the population the moral judgments of that Church must be the judgments which are put into our legislation. If we are to be a democratic State and one which, as the Constitution states, cherishes all our children, our citizens, equally then we must legislate to ensure that they are all equal under the law.

Marital breakdown is a fact of life in Ireland and elsewhere. It has been with us, and throughout the world, for as long as the institution of marriage itself has existed though, obviously, that was not admitted here until quite recently. Indeed, there are very many marriages in the State — I cannot put a figure on them — which on the surface exist as united marriages but only exist in name. Financial consequences, and no other reason, keep them together either because of the financial position of the man or the woman. There may be other reasons but because a wife or husband has not been deserted, or because a person has not sought a barring order or a separation it does not mean that all other marriages are happy and that those involved in them would not like an alternative arrangement.

It must be said that the stresses which have resulted from the change in the make-up of our society over the last 25 years or so has had its effect on marriages. The massive movement of people from rural to urban areas clearly has had its effect but it must also be said — the report refers to this to some degree although it went on to say that it had not the competence to deal with it — that the social and economic pressures of life have had their effect on marriages. There is little doubt that a lack of enough to live on will put a severe strain on a marriage. There is little doubt that if the partners involved in a marriage have some problems, psychological or psychiatric, they will put a strain on the marriage. However, there are virtually no services available to cope with such problems. In fact, in regard to the financial element, the reality for people who depend largely on social welfare is that their standard of living is getting worse and not better.

In effect, the State, while refusing to cope with the reality of broken marriage is also refusing to cope with the social and economic pressures which the conditions that exist in our society are putting on marriages. It has been estimated by the Divorce Action Group that there are 70,000 people in the State involved in broken marriages. We can argue about that figure for the remainder of the debate and it will not get us anywhere and, as another Member said, it does not really matter whether the figure is 70,000 7,000 or even 700. Broken marriages for that 700 mean that the Legislature has a duty to deal with the problem.

There are some real figures which are not in dispute. I understand that 8,000 Irish women are in receipt of the deserted wife's allowance, with 14,000 children involved. In 1982, 2,428 barring orders were applied for. Refusing to recognise those realities does not do anything for the people who are trapped in that situation. Some Members deal on a daily basis with the problems of deserted wives. We must cope with the problems they face in trying to prove, first of all, that they have been deserted and that the desertion took place — to use the curious term used by the Department of Social Welfare — as a result of a husband deserting of his own volition. In other words, that his wife did not force him out. Last year I had a curious case of an unfortunate woman being refused a deserted wife's allowance because she refused to uproot herself and her children from Ireland and move with her husband to Britain. That case was fought and was won on behalf of that woman but that is the type of hassle, pain and anguish people have to go through almost daily.

In my view, the State has two direct sets of responsibility in this matter. First, there is the need to deal with the contributory causes of breakdown, in so far as the State has the capacity to do that. This capacity is directly related to economic and social policies such as job creation, housing and the provision of adequate family support through social welfare and the social services. Secondly, there are the measures necessary to deal with the reality of marital breakdown. The partial remedies, the divorce Irish style that we have, barring orders, Roman Catholic nullity procedures, desertion and so on, are highly unsatisfactory and afford no protection to the parties involved, least of all to the children involved. What is required is divorce legislation coupled with a conciliation system to deal with marriage breakdown, not to prevent marriage breakdown because divorce does not prevent it or cause it. It simply deals with it when it happens. It is because of the provisions of Article 41.3.2º of the 1937 Constitution that the unhappy victims of a broken marriage are unable to dissolve those marriages and validly contract a new marriage should they so wish. It must be repeated time and again that the divorce debate is about the right to remarry.

I should like to refer to another shortcoming in the report in its consideration of the problems of marriage breakdown and the sort of legislative response there should be to the problem. The report has completely failed to address itself to the case for pluralism in our laws and Constitution. Indeed, its only concession in this area is to make a token nod in the direction of the minority Churches. Article 41.3.2º represents the worst aspects of the denominational nature of our Constitution. That Article is exclusively Roman Catholic in its conception. On that basis it is sectarian and triumphalist and ought not to be a part of the basic law document of a democratic State. Our Constitution must not place religious or secular citizens whose moral view does not exclude divorce at a disadvantage before the law.

Unfortunately, the committee failed to direct their attention to the deeply damaging effect which this provision has had on our society, on the lives of Irish people, on their perceptions and attitudes to each other and, indeed, to the State itself. As I have said in another context, the notion of Catholic laws for Catholic people is just as repugnant to a democrat as the notion of Protestant laws for Protestant people.

There are many in this House and in this State who have rightly criticised the operation of the State in Northern Ireland since its inception, on the basis that it had a Protestant parliament for a Protestant people. Can we legitimately claim that we have done any better in this regard? Can we claim even yet that we are prepared to change our approach and our attitudes, not as a kind of political lollipop to the people of Northern Ireland, but as an attempt genuinely to reform and democratise our laws and our Constitution? Can we say we are prepared to face this very thorny and emotional problem of divorce?

Quite apart from the failure of the report to acknowledge the need for divorce, it is also a very conservative document in many other ways. In taking the definition of the Irish courts of the family, it is clearly at variance, for instance, with the European Court on Human Rights in making a distinction between legitimate and so-called illegitimate families. This aspect of the family is under scrutiny at Strasbourg at the moment, with Dr. Roy Johnson's case being considered there. Indeed, there is also a draft Bill — not before the House I should add — floating around out there somewhere which was presented by the Government for discussion, dealing with the status of children and aiming to comply with the European courts. The report leaves unresolved this question of the legitimate and so-called illegitimate family —what I would call the natural family. It does urge, however, swift presentation of the legislation under discussion. I wonder if, in the course of this debate, the Government spokesperson will indicate when it is proposed to bring forward that legislation.

The report also refers to the educational system for marriage. Again, it does not come to any conclusion except to say that it should be ensured that such a system is available. It does not propose how that system should be provided. I must make the presumption that all the committee are talking about is assisting those voluntary groups which already provide some type of pre-marriage courses. In my view that kind of approach is totally inadequate. We must examine the attitudes and ideas that we are promoting within our primary schools to men — and to women in particular.

I know that some studies are already being done in that regard by the Department of Education. However, it is necessary for us to look further than simply putting on a week or two of pre-marriage courses and hoping they will help to resolve the problems which develop within marriages as a result of personality difficulties and clashes, economic circumstances or whatever.

The report claims to have examined the factors which contribute to marriage breakdown but asserts also that the committee have no competence in assessing the social factors. They lay stress on drugs and the abuse of alcohol; they acknowledge the disturbing economic and social pressures and urge in-depth studies as a matter of urgency by the appropriate bodies. I do not propose to go into that in any detail except to say that those are some of the platitudes which I mentioned earlier — people who have a real problem being told that they must wait until the appropriate body study the cause of marriage breakdown before they can hope for a resolution or remedy for their situation.

Divorce has been discussed continuously outside this House before this and it is good that this debate is now taking place within the House. The failure of successive Governments to take any legislative initiatives to deal with the problem, despite the undisputed increase in the rate of marriage breakdown, reflects no credit on this House. While details of various opinion polls, differ, they all show that only a minority are now opposed to divorce in all circumstances. The opinion polls also show clearly that support for divorce is greatest amongst those age groups most likely to suffer from the problems of marriage breakdown. Not for the first time, the people are ahead of most politicians.

I find the attitude of the Taoiseach to this problem extraordinary. He has said that, while he personally favours the removal of the constitutional prohibition on divorce, he does not believe that a constitutional amendment to this effect would succeed in a referendum at present. Clearly, he believes in leading from behind. Has he no confidence in his own capacity or that of his party to convince people that this major item of social reform is a necessity? What he really believes, I suspect, is that he cannot rely on the support of his own party colleagues here in this House in a referendum and as his political survival is a stronger instinct than his oft proclaimed commitment to social reform, he will not risk taking any action. I believe that a referendum can be won. It would be possible to win a referendum if all Members of this House who support it privately were to give it public support.

The attitude of Fianna Fáil to the committee and to the problem of marriage breakdown has again been quite despicable. It would appear that no social problem is too great, no human misery too awful, or no suffering too bad that it cannot be milked for every possible political advantage. All the signs are that the disgraceful performance of Fianna Fáil on the Health (Family Planning) (Amendment) Act will be repeated if — and I stress if — there is any attempt to legislate to deal with this problem. The real tragedy, of course, is that this political paralysis is being sustained in the name of Christian values and in defence of the family when it is, in fact, anathema to both. It is, furthermore, threatening the credibility of democratic political change.

Firm action is needed now. The committee have produced the report. The ball is back in the Government's court. A referendum must be held to delete the constitutional ban. Legislation must be introduced which will place emphasis on the prevention of marital breakdown, which will provide mediation and conciliation services and comprehensive family support services based on irretrievable breakdown as the basis for divorce. The legal process should be conducted in a non-adversarial manner through family courts. Proceedings should not seek to apportion blame, or penalise the parties involved but rather should aim at reaching as broad an agreement as possible on the issues involved. The interests of children must be protected fully and take precedence over all other interests. Finally, the cost of divorce proceedings should not be prohibitive and legal aid should be available.

An Leas-Cheann Comhairle

Deputy Michael Bell.

Dr. O'Connell

I should like to make a protest because I went down to see your list and Deputy Bell was not ahead of me on that list.

An Leas-Cheann Comhairle

I told the Deputy privately here and, following a question from Deputy De Rossa, I indicated very clearly to him that at the stage that Deputy Flynn was offering, the Minister of State, Deputy Connaughton, from the Government side would follow, that Deputy De Rossa would follow him, that it would go back to the Government side and then to your side. I made that very clear to the Deputy when he was standing right beside me and I also indicated——

Dr. O'Connell

That is not what I understood from you.

An Leas-Cheann Comhairle

Then the Deputy misunderstood me. Whether the Deputy misunderstood me or not, that was the picture as I gave it to him. Deputy Bell.

Mr. Bell

I do not mind whether I speak before or after Deputy O'Connell. It makes no difference to me one way or the other.

I speak in this debate first, as a married man with five children having been happily married for 25 years and, hopefully, for another 25. I speak also as a member of the Catholic Church, as a Christian, with no axe to grind with any bishop, parish priest or anybody else. I speak in the broadest possible terms, hopefully representing my point of view and those of my party. If divorce were necessary in regard to Deputy Bell only I would not be bothered speaking because it would not be necessary but the matter goes a good deal further than that. As a politician living in an urban area like many of my colleagues more and more of my work and time is taken up with the problems of broken marriages. There is no doubt in my mind that the time is right to take a decision. Whether that decision be for or against removing the constitutional ban, for or against divorce, at least we shall have succeeded in doing something, in taking a decision. For want of a better expression, there are a number of contentious issues that must be got out of the way. As a practising Catholic I try to live by the Ten Commandments. I do not think they contain anything that says one cannot have divorce or that one cannot remarry. They talk about adultery and many other matters but they do not say anything about being unable to remarry. If one wanted to talk about going to Heaven, then if all the people who have been divorced and are happily remarried could not go there, there would be hardly sufficient room for them in hell.

We should approach this debate in an unemotional manner. The report of the committee is very useful if only for the fact that it provides much background information that might not be available otherwise. It is a great pity the committee were unable to reach a consensus and make a recommendation to the Dáil because effectively that was their purpose. Were it not for the fact that the report supplies us with much background information, then it could be said we spent much time and taxpayers' money to no avail.

I spoke the other day to a girl I shall call Mary. I said to her, "Mary, you have been separated for a while; I am sure you would join the pro-divorce lobby". She replied, "Oh, no, I do not mind being separated but I would not like to be divorced". Much time will be needed to explain to people what exactly we here are endeavouring to do. What the Labour Party are endeavouring to do at this stage is to change the Constitution to allow for the introduction of divorce; the type of divorce and what lines it should follow is another day's work. We are endeavouring to place our people in a position that they have a universally recognised human right.

Debate on divorce in recent months has been focused too narrowly, concentrating on the arguments for and against removing the constitutional ban. The fact that this would involve a referendum requires that there be widespread debate of all the issues involved. I agree with Deputy De Rossa when he said there should be a major debate on this issue, not lasting a number of years but rather that we should debate the matter and reach a conclusion. Furthermore, there should be the widest possible public involvement in that debate. Above all, there must be full discussion of the type of divorce legislation we would envisage if the constitutional ban were removed, what safeguards, both of a legal and financial nature, would be introduced to protect existing families, what kinds of procedures would be adopted and which courts would hear and deal with petitions for divorce. These are the real issues which to date have received inadequate attention.

In considering the kind of legislation to be introduced and the necessary safeguards it is helpful to examine experience in another jurisdiction with much common ground, namely, Northern Ireland. We should study carefully the operation of divorce legislation there, the number of decrees granted each year, the cost to applicants and the financial safeguards for dependent wives and children when a divorce is granted. Such an exercise would allay some of the instinctive fears of people in this part of the country, people who are aware of the seriousness and extent of the problem of marriage breakdown but who are reluctant to allow the legal termination of the marriage relationship through divorce.

The history of the introduction of divorce in Northern Ireland is as follows. In 1857 when the Matrimonial Causes Act was passed by the Westminster Parliament, which set up a Court on Divorce and Matrimonial Causes in England, the provisions of that Act were not extended to Ireland which, at that time, was under the jurisdiction of that parliament. Eighty-two years later, in 1939, an Act was pased extending the remedy of divorce to Northern Ireland on the basis of establishing fault as a result of adultery, cruelty or three years' desertion. When English divorce law changed from this requirement of proof of fault to the adoption of irretrievable breakdown as constituting the sole ground for divorce, through the Divorce Reform Act of 1969 which came into operation in January 1971, the provisions of that Act were not extended to Northern Ireland. To prove irretrievable breakdown the petitioner would have to satisfy the court of one or more of five facts: (a) that the respondent had committed adultery, the petitioner finding it intolerable to live with the respondent; (b) that the respondent had behaved in such a way that the petitioner could not reasonably be expected to live with the respondent; (c) that the respondent had deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; (d) that the parties to the marriage have lived apart for a continuous period of at least two years, being a period immediately preceding the presentation of the position and the respondent consents to a decree being granted; (e) that the parties to the marriage shall have lived apart for a continuous period of at least five years, being a period immediately preceding the presentation of the petition.

A further and more controversial development took place in 1973 in divorce procedure in England when, under an amendment of the Matrimonial Clauses Rules, a special procedure was allowed whereby undefended petitions, other than those based on the respondent's unreasonable behaviour, or those in which the parties had children under 16 years of age, could be disposed of by simple affidavit without the necessity of the petitioner appearing in court. These became known as "quickie" or "postal" divorces and this procedure was extended to all cases of undefended divorces in 1976. Similarly, legal aid in undefended cases was withdrawn. Thus, between 1971 and 1976, English divorce law went through a radical transformation. What had up to then required a determination by a High Court judge in open court became a matter for decision in the county court on affidavit in the absence of the parties.

The next change in Northern Ireland was introduced by the Matrimonial Causes Order (Northern Ireland) 1978, which adopted the concept of irretrievable breakdown as the basis for divorce in Northern Ireland, but which did not extend the special procedure for "quickie" divorces in the case of undefended petitions. This order came into force in Northern Ireland on 18 April 1979 and divorce jurisdiction was extended to county courts as well as to High Courts on 1 September 1981. The change from proof of fault to irretrievable breakdown has led to some increase in the number of petitions filed and the decrees pronounced since it took effect on 18 April 1979. In 1978, 714 divorce petitions were filed. By 1980, that had gone up to 1,620 and in 1985 — to the end of October — it had reached a figure of 1,300.

Apart from the grounds for divorce and statistics relating to divorce petition, the Northern Ireland experience is important in the two fundamental areas of concern in divorce proceedings, the welfare of children and financial provisions, and this was also referred to by Deputy De Rossa. If there are children involved, the major innovation in the 1978 order in Northern Ireland was the provision that a decree of divorce should not be made absolute unless the court has, by order, declared itself satisfied that the arrangements for the welfare of the children are satisfactory or the best devised in the circumstances. In making that assessment the Northern Ireland court had the benefit of a report from a suitably qualified person which gives an opportunity for an independent check by a trained social worker on what arrangements are in operation or intended with regard to the children.

Financial provisions are now governed by the Domestic Proceedings (Northern Ireland) Order, 1980, which came into effect on 1 December 1980. An application can be made by either spouse and the court can award periodical payments and/or a lump sum and include an order of protection against a violent spouse where necessary. These orders resemble the relief now available here under the relevant provisions of the Guardianship of Infants Act, 1964, the Family Law (Maintenance of Spouses and Children) Act, 1976, as amended, and the Family Home Protection Act, 1976, as amended.

The conclusion to be drawn from an examination of the divorce jurisdiction and ancillary reliefs available in Northern Ireland is that careful thought would have to be given here to each issue involved which would include the ground or grounds on which a divorce might be granted, whether a distinction would be drawn between the procedures for defended and undefended cases, the court or courts which would have jurisdiction and what supports and procedures would be available, the kind of provision to be made for the welfare of the children, financial provision for a dependent spouse and children, provision relating to the matrimonial home and any other property of the spouse.

We must now enter the second phase of the debate on divorce by examining all these issues and considering their possible impact on family life and the stability of marriage in Ireland. If this examination is carried out fairly and conscientiously it will strengthen the case for a reasonable and well structured divorce law here which is compatible with constitutional recognition of the family as the basic unit of society.

More attention should be focused on the kind of divorce legislation which we want when the ban — as I believe it will — is removed. Recent opinion polls show that its removal is only a matter of time. Therefore, we must consider carefully and discuss openly the safeguards and procedures which should accompany divorce legislation, particularly in regard to children and the financial security of spouses affected by a divorce decree. At present we have the worst possible situation, a constitutional ban on divorce but several different kinds of divorce, Irish style, as usual, which do not protect the economic and legal position of spouses and children.

The first of these Irish style divorces is in the luxury bracket where the husband is wealthy enough to establish domicile abroad and to obtain a divorce which the Irish courts recognise. Such a foreign divorce is recognised even if the wife is not represented in court and had no opportunity to ensure her financial position and the security of the children. Increasingly foreign divorce is the safety valve for the better off when the marriage has broken down. The second Irish style divorce is when the husband deserts his wife and either marries or lives with another woman. I am sure every Member is well aware of the tremendous increase in the numbers of men living with women following separations. In cases like that, the financial security and welfare of children are badly protected, although there has been a very significant increase in actions for custody and maintenance which very often accompany this way of terminating a marriage.

We also have Catholic Church annulments which, although they cannot in any legal sense be equated with divorce, have the same practical consequences as civil divorce and they represent a means for Catholics in Ireland to end a marriage and go through a second marriage in a Catholic church. Once again there are no proper financial or legal safeguards and children of such a second marriage are illegitimate. A second spouse would lack any of the protections of the Family Law Acts and the Married Women's Status Act, 1957. We have access to a remedy for marriage breakdown in Ireland but it is discriminatory, unfair and is not based on proper planning for the welfare of children and the financial security of spouses.

Faced with the stark reality of approximately 25,000 marriages that have irretrievably broken down and the clear evidence that a significant number of parties to those marriage relationships want access to divorce, we have no alternative but to face up to the responsibility of introducing carefully thought-out and well planned legislation in Ireland. I spent some time in the USA and I should not like to see divorce legislation American-style introduced here. There, one could get a divorce practically in the same way as one applied for a TV licence. That is not the kind of legislation that I as a Christian and a responsible parent would like.

The first step will be to examine approaches to divorce adopted by other countries with a similar attitude to marriage and the family as our own. The nearest jurisdiction and the one closest to us in every sense is Northern Ireland. We could benefit greatly from a detailed examination of the divorce jurisdiction and ancillary reliefs available there. Incidentally, Northern Ireland is only 26 miles from where I live. The divorce jurisdiction there is significantly different from that in the rest of the UK and this would be helpful in planning the appropriate procedures and safeguards for each issue involved.

They are: the ground or grounds on which a divorce might be granted; whether a conciliation stage would be obligatory before seeking a divorce; the kind of provision that would best secure the welfare of children; financial security for a dependent spouse and children; provision relating to the matrimonial home and regarding any other property of the spouses; whether a distinction would be drawn between the procedure for defended and undefended cases; and — this is a very important aspect — the court or courts that would have jurisdiction and the supports and procedures available to ensure that the safeguards were implemented.

Instead of deluding ourselves that the constitutional ban on divorce has prevented marriage breakdown in Ireland, we should face the social problem which oppresses so many couples and their children. We should admit that already we have unplanned and discriminatory divorce in Ireland that must be replaced by carefully thought-out legislation and procedures helpful to people already suffering the trauma of a marriage relationship that has irretrievably broken down.

The Labour Party's proposed Bill will not solve the problem for everyone because we would still have to deal with the type of legislation to be enacted but it will make way for that eventuality. It is worthwhile noting the following provision in the Labour Party's Bill. It states:

The State pledges itself to guard with special care the institution of marriage and to protect it against attack. The State shall take measures to encourage adequate preparation for marriage and to promote the stability of marriage.

It shall be the duty of the State in making provision in cases of marital breakdown, to seek reconciliation between the parties to the marriage, to provide for the physical and economic protection of vulnerable family members and to afford a means for the dissolution of marriages which have been broken down irretrievably.

We may be 20 years behind mainland Europe and even further behind the UK, but if we succeed in putting right something that is defintely wrong, the Labour Party will have achieved again some of their policy in Government. I look forward to the report of our colleagues and partners in Government, the Fine Gael party. It is time for them to make up their minds on this issue. It was part of the programme for Government; it was part of the document written in Limerick three years ago. It is time for that document to be honoured. If it is not honoured I will lose all faith in any deals we have done in relation to that document.

Dr. Noel Browne spoke eloquently in this House on many occasions. On 3 June 1980 he said:

Because of its consistent failure to implement the basic principles of pluralism, secularism and radicalism in our Constitution and laws, I have continuously questioned the validity of Irish Republicans' claim to represent an authentic Republican philosophy. I have consistently held that Mr. de Valera's 1937 Constitution has been the greatest single impediment to political rapprochement between the peoples of the North and South.

Doctor Browne made the point that the rights of the minority should not depend on the size of that minority but rather that rights have a validity of their own. I agree with that. The right to dissolve a broken marriage is a fundamental right especially when the parties involved are suffering intolerable hardship and stress and bringing what would appear to be unnecessary strain on any children of that marriage. It has become an accepted fact in society, and indeed in political circles, that the changing role of women in society, coupled with new stresses due to economic depression, have led to an increase in the breakdown of marriages. An ESRI survey has shown that over 50 per cent of the population favour some form of divorce laws.

My Labour Party colleague, Senator Michael Higgins, speaking in the Seanad on 15 June 1983 said:

The first point I want to make perfectly clear is the position of the Labour Party in policy terms. In the mid-seventies the Labour Party, not capriciously but after a great deal of consideration, decided overwhelmingly at their Conference that they were in favour of the removal of the constitutional ban on divorce. That is the position of the Labour Party.

That indeed is the position of the Labour Party because it is the policy of the party and that policy was not decided because of the introduction of a Bill by Deputy Michael O'Leary. He was very much a part of that decision as Leader of the Labour Party. Our policy was not decided in the past few weeks. It has been our policy for many years.

In the mid-seventies the Labour Party took this position for a variety of reasons: first, pluralism and, secondly, on social grounds and in response to the real conditions of a social kind which existed and which made it unhelpful to have a constitutional prohibition on divorce. It was never suggested by the Labour Party that the removal of the constitutional prohibition on divorce would lead to a solution of problems for which other remedies would be appropriate.

The significance of these points raised by Senator Higgins is that they spell out quite clearly that the Labour Party have supported the removal of the constitutional prohibition on divorce since the early seventies. They took this stand because they believed in a pluralist State which would respect the views of all its churches and because as a socialist party they respected the rights of individuals to make adult decisions about their private lives and to seek legislative redress from a marriage which had broken down. This decision was not made quickly or without due consideration of the complexities of the matter but rather after much discussion and careful examination (a) of social pressures which lead to marital breakdown, and (b) the stresses and intolerable hardship which families have to endure once a marriage has broken down. The Labour Party did not view marital breakdown in isolation but as one of the greatest problems facing our society, not in the eighties but going back to the early and mid seventies. It was against this background that they brought the motion on divorce to their annual conference and why Labour Party delegates voted overwhelmingly in favour of the removal of the constitutional ban on divorce.

Senator Michael Higgins stressed in the Seanad that the people have now indicated in the polls that they want a referendum on divorce. Indeed, one might add that if a small unrepresentative group of people can approach the leaders of the main political parties and get a commitment to hold a referendum on abortion — when there appeared to the majority to be no need for one — why must there be such a long and arduous debate about a referendum on divorce? The opportunism of the major political parties in giving their commitment for the previous referendum must be pointed out. The Labour Party are anxious that the question of divorce, which is a painful and stressful experience for adults whose marriage has broken down, must not become the matter of similar opportunism.

Debate adjourned.

Dáil Éireann debate - Thursday, 14 Nov 1985

Report of Committee on Marriage Breakdown: Statements.

Dáil Éireann debate -
Thursday, 14 Nov 1985