In moving this Bill I want first to explain, for the record, what this Bill represents. This is a Bill to provide for a referendum. The purpose of its passage is so that the people of this country may be asked to vote on one basic question. That question is: "do you believe that the people you have elected as legislators should be able in certain circumstances to provide for the right of remarriage to couples whose existing marriages are irretrievably broken?"
It is very important that this Bill should be seen for what it is, and no more. It is a Bill which seeks to give the people the right to choose. It is no more than that. The people of this country ultimately are the only ones who can determine a change in our Constitution, and they alone have the right to make that decision. As legislators we have an obligation to place that choice in front of them, and I believe that we have that obligation now.
I should like to begin, therefore, by outlining the choice that this Bill would put in front of the people. The Bill proposes: first, that the existing provision in the Constitution, which forbids the Oireachtas from even considering legislation on divorce, should be modified; and secondly, that a new provision should be inserted that would enable the Oireachtas to provide for divorce, subject to certain vital safeguards.
These safeguards are three in number: (1) No divorce should be capable of being granted except by courts established under the Constitution; (2) No court would be empowered to grant a divorce except when it was fully satisfied that it was no longer reasonable for the two partners to a marriage to live together; (3) No divorce could be granted in any situation where the dependent spouse and children are not adequately catered for.
So the Bill proposes to place a choice in front of the people—a choice between the present situation, where this House is prohibited from providing real and concrete remedies, even though every single Member of the House is aware of the enormous social tragedy of marriage breakdown—a choice between this total prohibition, on the one hand, and the possibility that we could provide new hope for the thousands who are trapped in hardship and unhappiness, on the other.
This Government were given a mandate from the people. Among other things, their appeal was based on a reforming outlook, a determination to bring our social fabric into the modern age, and to do away with many of the injustices and inequities of the past. The appeal of this Government also included a willingness, perhaps for the first time in our history, to legislate on behalf of all the people, subject to no denominational constraints. That appeal was summed up for many in the image conjured up by the phrase first used by the Taoiseach—"constitutional crusade". But that crusade has faltered. A relaunch of that crusade, a decision to take our courage in our hands and break out of inactivity, could only be for the better.
In any event, the mandate this Government have is running out. Some time within the next 18 months or so this Government are going to leave office. It is not my purpose here to speculate on whether they will regain office, but it is important to make the point that there are no guarantees. Above all, there is no guarantee that a Government will exist in this country in the next ten years or more who will be willing to put the choice in front of the people.
It is clear, therefore, that by failing to move now, we may be consigning to the far distant future the hope of any progress in this area, and all the time the scale of the problem will continue to grow while the hands of the legislators remain tied.
It is not as if this Bill and this debate were descending on the House like a bolt of lightning. This subject has been debated for years. We have all heard in our time contributions to that debate from politicians, child-care experts, victims of the present situation, churchmen, and many others. We have discussed the problem of marriage breakdown in this House. We debated it when the Constitution was first placed before this House almost 50 years ago and on many occasions since. We have debated it in the community and in the media and in the New Ireland Forum. We have debated it in this House in Committee and in plenary session. Most Deputies in this House have enunciated their positions in regard to the problem of marriage breakdown not once, but many times, and still the problem keeps growing, and still the legislators' hands are tied.
We have debated this issue within our own parties. My party have a clear and unequivocal policy position in favour of the removal of the constitutional ban and the introduction of divorce in certain clearly defined circumstances. The Fine Gael Party have, I believe, a similar policy of long standing. There is no party in this House, as I understand it, who have adopted a contrary policy stance, and no party who regard the Constitution as imperishable and unchangeable. Yet the problem keeps growing and still the legislators' hands are tied.
In my view, it is no longer accurate to say the time has come for action. It is past the time. The people of this country should have been consulted long before now on this question. We must accept, I believe, that the time for excuses is past. Even if, as I hope it does, this Bill passes the Second Stage, it will be many months, and much detailed discussion will take place, before it leaves this House. It must then go through a further process in the Seanad before, finally, the people are asked to make the choice. All we are asking for now is that we make a start.
It has been implied that moving this Bill — even voting on this Bill on Second Stage — in someway pre-empts the necessity for, and the possibility of, further consultation, particularly with the Churches. I want to make two points in relation to this: first, it is clear from what I have said already that I do not believe that further consultation is necessary.
However, I believe that there is nothing in what we are doing which precludes the possibility of any further negotiation or consultation that any see as desirable. Nor is there anything in what we are doing which necessarily pre-empts the outcome of such consultations. I should like to elaborate on these two points, first, the question of the necessity for further consultation.
It is normal in any democracy — and right that it should be so—that those who have an interest in any situation should be consulted when change is proposed. The process of change is always going to be more successful and beneficial when those who are likely to be affected by change are persuaded that change is right and necessary.
I believe that where this question of marriage breakdown is concerned, the Churches, who act as agents of the State in respect of many marriages, must be consulted about the implications of proposed changes for their role and functions. They are not alone in this. Many other agencies and individuals, particularly those who come face to face with the consequences of marriage breakdown, would have a great deal to offer in any consultative process also.
These consultations have, in fact, already taken place at great length both in the New Ireland Forum and before the joint committee. To repeat these consultations yet again gives rise to the suggestion that nothing more is intended other than a delaying tactic.
What we are asking the House to do in this Second Stage debate is to decide in principle that legislation is necessary to give the people a choice. This brings me to the second point I made about the process of consultation, namely that, whether or not I believe it is necessary, I do not believe there is anything in what we are asking the House to do which would preclude or pre-empt consultation.
The process on which we are embarked in this debate is a very particular one under the Standing Orders of this House. Unlike normal legislation, this Bill, if it passes Second Stage, will be referred to a special or select committee.
In other words, if the House agrees to Second Stage, the House will be deciding in principle that some legislation in this area is desirable, and the House will further decide that it will be a matter for a special committee to decide the final shape of that legislation. I understand that that committee could be an existing committee, such as the Committee on Legislation; or a committee established especially for the purpose; or indeed, a committee of the whole House. It will also be a matter for the House to decide when and how often that committee should sit, and for how long.
I want to give this solemn assurance to the House: we are seeking the maximum support on Second Stage, and in return we will facilitate the work and deliberations of that special committee to the maximum possible extent.
Indeed, we would welcome the fullest possible deliberation of this whole issue in such a committee. We do not regard ourselves as possessing the only truth in this matter. For example, it may well be that Deputies would like to see further safeguards written into the legislation— there could be no better opportunity than the work of such a committee for this exercise.
Furthermore, we see no reason why the work of that committee could not be undertaken in parallel with any consultations that were taking place outside the House—such overlapping deliberations would inform each other, rather then pre-empt each other. The consequence, I have no doubt, would be better legislation, to which every Member of this House would have an opportunity to contribute.
I would ask the House to remember this—we are not in a position, because we are a relatively small number of Deputies, to curtail any debate in the House on this Bill. A Government with an overall majority can take the view that it will only accept amendments that suit it; but from the perspective of the whole House and of individual Deputies, it is one of the virtues of our minority position that we are dependent on Deputies' support. Therefore each Deputy has a guarantee that his views must be taken seriously into consideration in arriving at a completed Bill.
So, not only are we not precluding consultation; we are guaranteeing that the views of every Member of this House will carry equal weight, no matter how those views might be informed. The legislation that will emerge from this process will, in so far as we can ensure it, reflect a consensus of the House on this widespread social problem. I turn now to the need to deal with marital breakdown. It would be possible, in the circumstances that have surrounded this whole issue, to conduct this debate entirely about politics, tactics, and the like. To do so would be to forget what the debate is about. This Bill sets out to deal with a human problem of enormous proportions, and it is that human problem I now wish to address.
The problem of marital breakdown and its consequences has been inadequately documented in our society. It is a problem that has long been side-stepped, and the result is that there is no one in this House who can place before us all the relevant statistics, so as to put beyond any doubt or discussion, the scale of the tragedy and the urgent need for remedy.
Why should this be so? Why should this be the only country in the developed world where there is no accurate and reliable index of such a troubled issue? In part, no doubt, it has to do with the kind of society we are, a society where the importance of marriage as a symbol of one's place in society has always been real. In part, of course, it has to do with the Judea-Christian ethic which rightly lays great stress on the permanence and sacredness of marriage.
In part, too, there has been fear of this whole subject — a fear that even the admission that marriages do break down will lead in some way to the undermining of the family and to the beginning of the end of society.
So I cannot say that there are 50,000 or 100,000 families suffering from marriage breakdown. The definitive statistics are simply not available. But I can say that the number of such families is large and that it is growing, and that the consequences involve pain, suffering and hardship for a great many people.
We have the evidence, after all, of the many experts who testified before the Oireachtas committee. We know the experiences of the individuals and groups who work on a day-to-day basis with families in distress. We know the views of the pressure groups campaigning for change.
But when it comes down to it, we do not need all of this information, because everyone of us in this House knows of the problem. We meet it every day in our clinics, in our contact with ordinary people, in our constituencies and among our friends and relatives.
We may not have definitive statistics on the number of people whose spouses have divorced them abroad and remarried, but we have all seen it happen. We may not have definitive statistics on the number of women and indeed men who have been deserted and have been made dependent on inadequate levels of social welfare, but we have all seen it happen. We may not have statistics on the number of people who have been subjected to violence, both physical and mental, by their spouses, or how many women have needed medical care as a result; but we know it happens. We may not have statistics that tell us the exact number of children who are brutalised as a result of violence from one or other parent, but we know it happens. We may not have statistics that tell us the number of homes that have been wrecked by alcoholism, by cruelty, by brutality or by sheer daily misery; but we know it happens.
We all know that there are countless problems that can be realistically addressed without the need for divorce, but countless more where no remedy other than divorce is possible.
Opponents of divorce in any circumstances often refer to the alleged adverse affects of divorce on the children. However current research from developmental psychology indicates that more damage is done to a child who is reared in an atmosphere of conflict, than to a child who experienced a stable relationship with at least one person. Research has also shown that it is advisable in considering the mental health of a child to terminate a sick relationship rather than perpetuate it.
As legislators, we know too the many anomalies in our present law which give rise to the hardship and injustice. The major anomaly concerns the area of nullity and illegitimacy. The courts have recently developed a slightly more liberal trend in broadening duress as a ground for nullity of marriage. This liberal trend derives from the constitutional prohibition on divorce. In a recent Supreme Court judgment, Mr. Justice Henchy conceded that non-viable marriages have on occasion been declared null on a humane interpretation of the doctrine of duress. It seems clear that the absence of a divorce jurisdiction has led the courts to try to extend the law of nullity instead.
This is clearly unsatisfactory. The burden of law reform should rest squarely here in this House. We will just have to put aside the sham and the fiction once and for all and recognise the fact as the Irish Law Times editorial points out this month that “the quality of matrimonial relationships is a matter which falls primarily within the province of divorce”— not nullity.
The "humane interpretation" of the courts referred to by Mr. Justice Henchy has not unfortunately until now been reflected by humane legislation in this House on this issue. However, the House does have an opportunity in this Bill — probably a last opportunity for a long time — to take the first tentative steps towards redeeming this situation.
We know that without the possibility of divorce there are thousands of people trapped in hopeless situations. All of the changes that we want to make, in situations where nullity is concerned, and in relation to illegitimacy, are hollow unless we are prepared to tackle this one major issue.
All of us in this House, share a commitment to parliamentary democracy. All of us share experiences of social realities. We are all familiar with the existence of injustice: all motivated by an awareness of hardship, of poverty, of inequality and of lack of opportunity. Therefore we must each accept that our task as legislators is to work for the removal of these injustices. We must do so whether or not those who are affected by injustice are Catholic, Protestant, Jew, or of another denomination, or of no denomination.
We must do so while protecting the right of individuals to follow the dictates of conscience. The Churches always have, and must always have, the right to inform conscience, to guide and to lead individuals in the exercise of that conscience. We cannot interfere in that process because by doing so we would be removing a basic human freedom. Thus, nobody in this House could, or should, be under any illusion. The solutions that we propose to any social problem must be compatible with the needs of individual conscience.
We do not propose this Bill on the basis that divorce is desirable. Divorce is no more desirable than broken marriage. Of course, we would all prefer a situation where the consideration of divorce was unnecessary, where marriages never died, where the stresses and strains which can lead to crisis in families never arose but to believe that the situation is the way we want it to be is to delude ourselves. Marriages do die, irretrievably and irrevocably and the consequences of that must be faced.
It has been said before, and I believe it is worth repeating, that divorce bears the same relationship to marriage as a funeral does to a death. I do not believe that the mere existence of divorce is likely to increase the incidence of broken marriages but I do accept that without care a situation could arise where because divorce is too convenient marriage itself could become a convenience. We have to take care to avoid this. If we accept, as we do, that the family is a vital and fundamental unit in our society, we must protect it but not by forcing people to live together who can no longer reasonably be expected to live together and who have not lived together for years. We are not protecting the family by trapping people in situations where poverty, hardship and violence are daily realities.
The word "family" is much discussed in the context of the Constitution and the debate on marital breakdown. We should analyse what we mean by this word. Taking a typical situation where a couple has separated and one or both have formed permanent and stable relationships with other people — perhaps having children of this second union — which is the "family" that we seek to protect or validate? Is it the original marriage — obviously finished forever — or is it the one or two permanent and long term relationships subsequently established and enduring?
In my view the need to protect the family is entirely compatible with a carefully prepared approach to divorce. Such an approach would only allow divorce within certain parameters and it would inevitably place a heavy burden on those seeking divorce to show that their case falls within those parameters. The grounds on which divorce could be granted would have to be stringent and I would hope that as this debate develops it would be possible to reach a consensus among us on what those grounds should be.
We cannot continue to ignore a reality which I believe is ignored by those who argue that any divorce law would open up the floodgates. That reality is that even though we have never permitted divorce we have never been able to prevent the death of marriages.
We are all, of course, aware of the argument that the availability of divorce legislation undermines family life and consequently hits at the moral and social fabric of society. In fact divorce itself is not the cause of these problems, though it may be the end product of marital breakdown. The nearest divorce jurisdiction is in Northern Ireland and an examination of the divorce statistics there shows that the availability of divorce there has not caused any significant undermining of family life in Northern Ireland. Over the past four or five years the number of divorce decrees granted shows a slight decline.
In moving this Bill we are arguing that the time has come to place a choice in front of the people. The choice we are proposing can be summarised this way: we believe that the people should be offered the opportunity of removing the present total ban on divorce from the Constitution and replacing it with certain safeguards within which the Oireachtas would be empowered to legislate for divorce.
We are arguing also that this Bill is timely, indeed that is past time, because the incidence of marriage breakdown is such that we are dealing with a major human tragedy. Thousands of people, adults and children, are trapped within marriages that have long ceased to be anything but vehicles for hardship and suffering.
We believe that if we fail to act now the opportunity may not exist again for many years. We believe also that there is an expectation that this Government will have the courage to do what has not been done—to lead and develop the debate, so that public opinion will have confidence in a careful and caring solution.
We have argued that the moving of this Bill can result in the establishment by the House of a special committee to finalise the shape of legislation and that we would welcome and co-operate with such a development. For that reason, we do not believe that we will be pre-empting any consultations considered necessary outside the House. We believe that it is possible to legislate in this area without infringing the right of private conscience and we do not accept that legislation which is carefully constructed would damage the family.
The moving of this Bill places the debate about marriage breakdown in a concrete context. Many, if not most, of the Members of this House have set out positions in the debate but so far that debate has been conducted in an abstract way. I appeal to every Member over the next week to consider carefully the arguments for supporting this Bill. The hardship that marriage breakdown generates can no longer be ignored and the right of the people to this referendum must be paramount.
For all of these reasons, I commend this Bill to the House.
