Perhaps I may begin my remarks by doing as other Deputies have done, by paying tribute to the joint committee for the commitment they have shown in advancing a very delicate task. As they did, I single out for mention the chairman of that committee who brought to that task all the skill and experience of a politician and, indeed, of a professional diplomat. Having said those words of praise, I must express some disappointment at the manner in which the report is structured. The debate which has taken place in this and in the other House indicates that there were two reports. There was the report which dealt with the vexed question of divorce and a second report dealing with the wider questions of matrimonial law, remedies, procedures and so on. The consideration of those issues by the Oireachtas would have been helped had we been given separate reports. That would have allowed people to focus on the different issues that arise. That was not to be and we had been presented with one omnibus report.
In those circumstances a number of Members of the House have complained that the debate has become somewhat unbalanced, with undue concentration on the question of divorce. They point out that the divorce issue represents perhaps one-fifth of the report in terms of space. I must say that those criticisms are a little disingenuous. The committee were established because the question of divorce was seen as a difficult, sensitive one, as an issue capable of arousing deep passions in Irish society, as being potentially divisive. It was considered that it should be the subject of a consensus approach. Were that not the case, this committee would never have been established in the first place. It is thus incumbent on all of us contributing to this debate to say, as requested by the Minister for Defence this morning, clearly and unequivocally where we stand on that issue. While I share his view that people should be clear and unequivocal I hope that those who address this subject will do so without arrogance and in an undoctrinaire way, with charity and understanding for those who have reached a different conclusion.
Before going on to give my own views on the subject, so muddied have the waters become at this stage that I am giving once again the view of the committee. This view is set out in chapter 7 at page 89 of their report.
The view of the committee is set out in chapter 7.8.29 as follows:
Having considered submissions and bearing in mind the factors set out above, the Committee is of the view that a referendum should be held; this was a decision of the majority of the Committee. A minority of the Committee believes that this matter should be decided by the Oireachtas as a whole without a recommendation from the Committee.
So as to ensure that no constitutional ambiguity results from any such referendum, the Committee feels that any amendment to be voted upon should be in a positive format.
The starting point for any discussion on this area rests with the Constitution where in Article 41.3.1 the State undertakes a constitutional obligation to guard with special care the institution of marriage and to protect it against attack. It is put more briefly in Article 41.3.2 which states that no law shall be enacted providing for the grant of a dissolution of marriage. Despite those commitments and solemn obligations, Irish marriages are breaking up in increasing numbers. Other Deputies have already supported the committee in bemoaning the fact that reliable statistics are not available. However, there are enough statistics to establish that it is a problem of serious dimension. Of course it is a minority problem since the majority of Irish marriages are and, please God, will continue to be happy and fulfilling. The very fact that it is a minority problem increases the obligation on us as legislators to take the issue seriously, to respond to those who suffer and who cannot seek or expect relief simply because of their numerical strength.
If I have a criticism to make of the committee's report it is that the full trauma of marriage breakdown is absent from its pages. Perhaps they took the view that there was no real need because every Member of this House is aware from his or her political activities just how frightening and awful the situation can be. It was described with great compassion by Bishop Cassidy in his address to the New Ireland Forum on 9 February 1984.
It is worth making the point that marriages can and do break up in societies with a divorce jurisdiction and in societies without a divorce jurisdiction. It is also the case that it is not the fact of marriage breakdown which causes passions to run high but the threat of divorce. The fact of marriage breakdown is recognised in our legal system and a range of remedies are available which include decrees of nullity, decrees for the restitution of conjugal rights, injunctions, barring orders under the 1976 Act, to name but a few. The existence of none of those remedies has given rise to the divisions which we associate with the divorce debate. An examination of the minutes of evidence published by the committee shows a fair consensus on the way in which those remedies could be developed.
A different situation arises when we come to divorce. Divorce, we are told, is an attack on family life. I cannot accept that. I borrow the words of William Duncan in the publication by the Irish Council for Civil Liberties, The Case for Divorce in the Irish Republic, that the right to divorce is based on humanitarian grounds. He says that the case for divorce is basically a humanitarian one, that divorce is needed to enable unhappily married people to free themselves from situations which have become intolerable and to give them, if they want it, a second chance.
What is so special and unique about divorce that separates it from all the other remedies and gives rise to such vigorous opposition? It is not the recognition that marriages break down. That recognition is already provided in many aspects of our legal and administrative practice. Neither is it the fact that where marriages have foundered people are to live apart. Our legal system not only permits that but for many years has sometimes involved directing couples to live apart. The argument is believed to centre on the right to remarry. How curious that distinction really is when one thinks about it. Those who successfully petition for a decree of nullity are free to enter into a new union. The jurists and the theologians will object to that and say that what is involved is a first marriage since the decree of nullity amounts to a statement that no earlier marriage has ever existed. That kind of reasoning is straight out of Alice in Wonderland. It is not a question of what the words mean but who is the boss around here. The truth of the matter is that many of those who seek nullity decrees have lived together as husband and wife, often for many years, and reared families. Differences have arisen and the parties seek a way out by reference back to the moment of marriage.
The arguments against divorce are set out in the report at page 80. First of all it is suggested that the introduction of a divorce jurisdiction would, as it were, open the flood gates and that the incidence of marital breakdown would be greatly increased. I continue to be surprised at how anxious those advancing that argument are to draw parallels from societies which appear to have little in common with the Irish experience, while ignoring what has happened in those societies closest to us. One thinks most particularly of Northern Ireland but also relevant must be the experience of countries like Italy and Greece which have strong traditions of religious adherence. The "flood gate" argument indicates an extraordinary lack of confidence in Irish society. I refuse to withhold my confidence in that manner. Those who make such arguments usually do so in the context of the suggestion that any restrictively drafted provision will inevitably be loosened in time. Later in my remarks I will provide an answer to that suggestion. The nature of society rather than the legal code which governs it determines the level of breakdown. The statistics made available in the report, for example, show an interesting contrast between the situation in England and Wales and Northern Ireland at a time when the divorce jurisdiction in these areas was identical.
The other argument is that the introduction of divorce would fundamentally change the nature and perception of marriage by making it into a temporary or conditional as opposed to a permanent union between husband and wife. The Minister for Defence put forward this view in his remarks earlier. I fail to see what reality underlies that proposition. For any marriage to be valid a necessary prerequisite is that both parties have an intention to establish a permanent union in sickness and in health, for richer or for poorer. Were that intention of permanance to be absent, that of itself might provide grounds for a subsequent nullity petition. The extent to which divorce would be available would impact on this area and that would obviously relate to the particular provisions which one would prescribe. I have already indicated that I do not believe it to be beyond the wit of man to draft appropriately restrictive provisions.
The third argument cited by the committee was that the introduction of divorce would reduce the protection at present given to the institution of marriage and the family under Article 41 of the Constitution. That is the central argument and it is one to which I will return. Suffice to say at this stage that far from having that effect, I believe the introduction of divorce could in some circumstances actually serve to support family life and to stabilise the very institutions of marriage.
The fourth argument advanced is that the introduction of divorce would cause people having difficulties to work less hard at their marriage. That is a fundamentally offensive argument, totally lacking in any sense of charity. I do not believe that people in Ireland, overwhelmingly of Christian persuasion, who have entered into a relationship in good faith determined to make it work, will begin terminating their relationships now on grounds of convenience. In contrast I find the suggestion that those whose marriages have broken up should be allowed suffer to encourage the others, as it were, or to discourage them, quite a bizzare notion. It is worth thinking about that for a moment.
Just which breakdowns are we talking about? By definition we are not talking about the breakdown of anybody who might conceivably be applying for a divorce, their marriages are already over. Instead it is suggested that as long as they are condemned to perpetual misery that condemnation will have a salutary effect on others. I refuse to believe that but, even if I did, the proposition is morally repugnant.
The next argument cited by the committees — one that deserves great attention — is that children are the losers and it is the argument which has caused me to ponder long and hard. Children do not suffer because of divorce but because of the absence of love in the family relationship. I was pleased to find support for that view from Monsignor Sheehy of the Dublin Regional Marriage Tribunal who, in answer to Deputy Máire Geoghegan-Quinn on 21 June before the committee, said:
We do not see the children very often but we do see the effects. It is not the effect of a nullity procedure or divorce procedure, it is the effect of a marital breakdown. That is the problem. Anyone who has worked in this field will know the appalling inhumanity of parents who can use their children once they get into conflict with one another. It is one of the awful effects of marital breakdown. It is not the question of one procedure or another, it is the question of how one deals with it. The problem is there before you get there and the only way to deal with the problem is to get in ahead of it.
There is some evidence that our attitude to marriage breakdown exacerbates the difficulties in regard to children. Judgments that young children very often make about their parents are substantially based on how other people judge them. The State's failure to allow for divorce for permanent and stable settlement of a broken marriage may somehow contribute to reinforcing the feeling that their parents are bad people who let them down. They see that their parents appear to be judged by the community, Church and State and I am not sure that there can be any more effective way to undermine a family unit than by contributing to the destruction of the relationship of trust which binds parents and children.
In The Irish Times last Saturday two books, How It Feels When Parents Divorce and Marriage and Divorce—The Real Issue, were reviewed by Charles Mollan. In the course of the review he quoted the words of one 12 year old boy who said:
If anything's bothered me, it's been my religion's attitude towards divorce. I'm Roman Catholic, and besides being very active in my Church — I'm an altar boy — I go to parochial school, where most of my teachers are nuns. ...After all, the Catholic Church has been able to make some changes in recent years — like allowing girls to be altar boys — so I cannot see why they cannot be a little more broadminded in their attitude towards divorce. People are going to keep on getting divorced no matter what.... I think kids of divorced parents would feel a lot happier if their Church could recognise not only divorce but remarriage as well. Being divorced is bad enough, but feeling God is mad too only adds to the feeling of guilt and makes the situation worse. For kids to go to school and be taught that divorce is a terrible thing, it's like being told that your parents are bad people and that they've offended God's feelings.
It is not unreasonable to speculate that the social pressures here are just as effective and repressive.
The next argument advanced against divorce is that women and children are the financial sufferers. That argument cannot be lightly dismissed but I do not think it takes account of the fact that in countries which have divorce a substantial majority of the applicants are women. Equally, it ignores the fact that as things are women, children and indeed husbands suffer financially as a result of marriage breakdown. The blunt fact is that an income which it was contemplated would provide for one household sometimes has to provide for two. It is already the case that the taxpayer is called upon to mitigate the effects of marriage breakdown where a spouse finds that the partner is not fulfilling his or her responsibilities.
Another argument is that the introduction of divorce would be contrary to the religious views of the majority of people here. That raises some very basic questions about the nature of the Irish State. Suffice at this stage to comment that a great majority of those whose marriages are breaking down are Roman Catholics and that a great majority of those who would avail of divorce if it were to be introduced would also be Roman Catholics. It is a sad simple fact that many individuals facing this tragedy in their personal lives find themselves unable to live up to the high principles set for them by their Church. In those circumstances I cannot believe that it is the function of the State to ensure compliance with the teachings of any one Church. It is also worth commenting that the submissions received by the committee established that every minority Christian Church expressed support for the introduction of civil divorce. The only dissent from that unanimity came from the Church of Latter Day Saints but they had a somewhat unusual perspective as they are committed to polygamy so, no doubt, that affects their view.
I now want to turn to the arguments in favour of divorce. I was about to say "to the arguments for the introduction of divorce" but that would not be right because divorce is already a reality of Irish life. The back pages of newspapers contain advertisements from agencies offering to arrange divorces, Irish style. There are several variations on the theme. Some of the divorces obtained would be recognised in this country and some would not. There are second marriages following the granting of a decree of nullity. In some circumstances, the decree of nullity was obtained from the Church courts only and the second relationship, therefore, is irregular. In some instances the parties would have gone to the trouble of getting a State annulment as well. Sometimes a divorce will have been obtained on the basis of domicile and in that situation the divorce would be recognised here. In other cases the divorce would have been obtained on other grounds such as residence or something of that sort and the divorce would not be recognised.
There are other approaches, the possibility of name changes, or assuming a common name to give the appearance of being a married couple. It is interesting that people go to such elaborate lengths to circumvent the prohibition on divorce because it shows how high the status of marriage is in society when people want to clothe themselves with the security of marriage in their second relationship. The first argument for introducing divorce is based on humanitarian grounds. It is giving a second chance to people whose marriages have failed and who now seek a chance to find happiness in a second relationship which they hope will be a loving, secure and permanent one.
I have already said that I believe the introduction of divorce in some circumstances may have a stabilising influence on family life. Nobody who has contributed to the debate had disputed the fact that there are a very significant number of unions involving a partner who had earlier been involved in a marriage breakdown. The absence of divorce means that the second union is denied legal protection and the children are illegitimate with all the consequences that flow from that. The family are discriminated against in the tax and social welfare codes. If difficulties arise in the second relationship the weaker spouse and children will be left entirely defenceless. I cannot but believe that the existence of so many irregular unions represents a much more serious threat to the institution of marriage than would the existence of a tightly controlled divorce jurisdiction. That last comment, of course, begs the question which is disputed by those who want to maintain the status quo as to whether it is possible to have a tightly controlled divorce jurisdiction.
I said I thought the case was essentially a humanitarian one. I do not believe the Irish people are lacking in humanitarian instincts. The evidence of umpteen opinion polls at this stage suggest that a sizeable majority of people are prepared to accept divorce in some circumstances but they also show that when people are asked how they would vote on any proposition that opinion is much more evenly divided. It seems that must be because some of the people who say they would favour divorce in some circumstances go on to say they would not vote that way because they would fear the circumstances would be wider than they would wish.
Earlier in the session Deputy Michael O'Leary presented to the House two Bills dealing with divorce. He did so on the basis of his interpretation of the opinion polls which was that while public opinion would be anxious to respond to cases of real hardship that opinion was anxious that there would be no loosening of the legislation. I would have found such an approach unacceptable at one time. I would have taken the view that the Constitution should not find itself concerned with points of detail, particularly when those points of detail are the subject of disagreement between different Churches. However, if one stops to think about it, our Constitution is a very detailed document and in a number of instances it takes a position on controversial issues. For example, in relation to private property many people on the left in Irish politics believe that the Constitution affords private property too great a protection while others would argue that it goes scarcely further than the constitution of Yugoslavia and that greater protection is required. The Constitution is not neutral: it takes a precise view of matters. Likewise, in relation to trade union law, some people suggest that the unions have too much latitude under the Constitution and others say they have not enough. Again, the Constitution takes a view on a subject of controversy and political debate. So, too, can be the case with regard to divorce.
The fact that any specific provision will be criticised, even by those favouring divorce, is no reason for excluding the issue from the constitutional domain. Its presence in the Constitution would provide a degree of security and reassurance that the public require at this stage. Objections will be made. Some people will say it would represent a vote of no confidence in the Legislature but the fact that we have a written Constitution is because we say there are subjects so basic that only the people can determine them and that Parliament is not sovereign. We say that in relation to questions dealing with liberty and property and I do not know why we cannot say it in relation to the central question of how we support family life. Many would be reassured in the knowledge that whatever restrictions were first provided for could not be relaxed without the people being consulted again. That reassurance is more important than questions of constitutional elegance or nicety.
The report of the Joint Committee went on to say that they were anxious to avoid an adversarial situation and for that reason they took the view that any legislation should be on the basis of irretrievable breakdown. In putting forward that suggestion I am not sure if the committee took into account that questions of conduct would arise in any event in relation to property, custody of children, maintenance and so on. There is also the difficulty that if a divorce jurisdiction is based on any test other than one of proof of objective fault, to some extent at least the question of whether to divorce then falls within the competence of the parties themselves and one then has a situation where there is divorce by consent on demand. That is not an easy question to resolve. I take the point that proof of fault can often be unpleasant and that it might lead to some of the bizarre escapades that were the norm in Britain when their divorce system was based on fault. I simply put down a marker at this stage that I do not think the case for no-fault divorce is as clear-cut as the committee seemed to believe and when we come to decide on the form of divorce jurisdiction the question will need to be considered more thoroughly.
I said that the report was really two reports. It dealt with divorce and a whole range of other measures dealing with preparation for marriage, support for marriage and remedies for marriage difficulties. On these issues where there is consensus we must move expeditiously to give effect to the report of the committee.
The committee considered the question of the age at which marriage can be validly contracted. There is abundant evidence linking marriage breakdown with marriage at an early age. It strikes me as extraordinary that people can enter into this most solemn contract — the only contract from which one cannot withdraw — at an age when they would not be allowed to enter into a normal commercial contract. It is quite extraordinary how that can be justified. The committee recommended increasing the age and that should be done immediately.
The committee were concerned to provide for education for marriage. Again, this has to be looked at in the context of the role of the schools and also in terms of what the State can do to support the various voluntary bodies involved in marriage guidance, counselling and the organisation of pre-marriage courses. There was also the question of a mediation conciliation service. In all of these matters I should like to think that the State would operate through existing voluntary bodies, in many cases based on the Churches, rather than to set up an elaborate bureaucracy itself. It is likely that greater flexibility and sensitivity can be got by involving people from the voluntary bodies who have established a commitment in the area for many years. The committee also concerned themselves with the other remedies available for marriage breakdown.
The sad thing is the lack of urgency with which the House has approached these matters for many years. Let us consider the area of nullity. In 1974 the then Attorney General — now Mr. Justice Declan Costello — published a White Paper on reform and subsequently it was the subject of examination by the Law Reform Commission. It is a subject that is crying out for reform. The committee's report makes the point that at this stage the law has become so hazy and so complicated that no one can advise people with any certainty whether they are married. That is an absurdity and it is something that must be regulated quickly.
I heard some suggestions that reforming the law on nullity could be a substitute for divorce. Any such approach would be a highly dishonest one. To pretend that marriage difficulties can always be solved by reference back to the point of marriage is not on. An overwhelming number of those who gave evidence to the committee agreed that the present court system is inadequate, that there is a case for the establishment of a family tribunal. That point linked people who held sharply differing views on other issues. Groups that had nothing at all in common in relation to divorce were united in their view that there was a need for a reform of the legal system. We should get on with this as fast as possible.
We were well served by the committee. I hope there will be agreement from all sides of the House in regard to the non-controversial aspects of the committee's recommendations. In relation to the vexed question of divorce, this cannot be pushed under the carpet further. We must confront it and this should be done through a referendum. That should be done in the way Deputy Michael O'Leary suggested when he indicated that the grounds on which divorce would be available should be enshrined in the Constitution.
