Our Constitution binds the State to recognise the family as a natural institution founded on marriage possessing inalienable and imprescriptible rights, which are antecedent and superior to all positive law. The family based on marriage is the natural, primary and fundamental unit group in society, is the necessary basis of social order and is indispensable to the welfare of the nation and the State. The State pledges itself to guard with special care the institution of marriage on which the family is founded and to protect it against attack.
Those who are responsible for these provisions in our Constitution and the people of this country, who, by their vote, enacted the Constitution in 1937 regarded marriage as a life long commitment. This Bill proposes to change that commitment. Divorce abolishes the legal right to life long indissoluble marriage, and what we are now being asked to do through this proposed legislation is to accept a fundamental change in our way of life as we know it, a change which will undoubtedly weaken the stability of the family and the quality of family life, and will severely damage the future well being of society.
Let us be very clear that the White Paper entitled Statement of Government's Intentions with regard to Marriage, Separation and Divorce has no constitutional status. The aspirations it contains have no constitutional standing, nor will they if the referendum is carried. What would matter then is what the referendum Bill contains and perhaps at a later date the Supreme Court's interpretation of this new addition to the Constitution.
After divorce and remarriage, if the proposed amendment to the Constitution is passed, the second marriage will have all the rights prescribed in the Constitution because divorce will have a constitutional status and all supports which were there for the first family will devolve on the second family.
The family courts to be set up by this Government may allocate resources, for example, a proportion of the former husband's income to his first wife and family but, because the Constitution declares that the family rights are antecedent and superior to all positive law, and as this will apply to the second marriage only, the second wife could contest the first wife's right to the allowance on the grounds that problems arising from living on a reduced income, allied to the strain and bitterness and resentment arising from the knowledge that part of the husband's income is being paid to the first wife, endanger the marriage and the State will then be constitutionally obliged to guard it with special care. After the divorce the first wife is no longer a dependant. In the event of a married man dying who was divorced and married a second time, the second wife will be entitled to the widow's pension and the first wife, very often, will exist on social assistance.
There is no gainsaying that there are severe marital problems to be found in our society, that, sadly, marriages do break down in Ireland and that all those involved are entitled to and deserving of our deep sympathy and compassion. We already have laws to help alleviate the problems and difficulties arising from marital breakdown. In cases where the marriage becomes intolerable and the husband and wife wish to separate and live apart, they have judicial separation, legal separation and civil nullity available to them, but problems arising from marital breakdown, such as maintenance, succession, family home, custody of children and so on are resolved. These laws can be improved further and, coupled with a positive programme to support and strengthen marriage and with a concerted effort to tackle the factors which cause marriages to fail, will result in the alleviation of much of the suffering and hardship involved and will go a long way towards meeting the needs of the breakdown of marriage.
Therefore, I emphasise that the fundamental issue in our discussion on this Bill is not separation, which is already available here, but the right of a person to remarry while that person's spouse is still alive and the inevitable consequences of such change on the stability of marriage. What may appear to be a relief for the few may cause disruption for the many, including many of those involved in divorce. The Government White Paper states that applications for divorce with the right to remarry will be made to the family court and that divorce may not be granted unless the court is satisfied that the marriage has failed, that the failure has continued for a period or periods of at least five years during which the parties have been separted in accordance with the separation procedures set out in the White Paper and that there is no reasonable possibility of a reconciliation between the parties.
There is no reference to separation in the Bill before the House, only the failure of marriage, nor will the people in this referendum be voting on the separation issue. Should the proposal in this referendum be accepted, people married and living together for over five years could claim that their marriage had failed and could apply for divorce as of that moment. The Government state that they will bring in legislation which will provide that a period or periods of not less than five year's separation will be required before an application for divorce will be entertained.
I must emphasise that, as the Government are introducing a separation period condition through legislation, this Government or any future Government can introduce further legislation reducing the separation period to three years or to one year or abolishing the separation condition altogether. Should the separation period be abolished in future legislation — and trends in other countries where divorce is available show that this will inevitably happen here — then, as I mentioned earlier, any couple married for over five years could apply for divorce. The five year separation period will not be part of the Constitution and will be a matter for the Oireachtas only should the referendum proposal be accepted.
What is proposed by the Government is by no stretch of the imagination a restricted divorce law. Statements that it will be necessary to have a further referendum to change the five year separation period are not correct. Should the referendum proposal be accepted, any Government can have the separation period changed by simply introducing the necessary legislation and having it passed through the Dáil and Seanad. In the divorce poll taken recently, 26 per cent of those interviewed are reported as saying that the five year period specified in the Government's proposals is too long. That is a sizeable group, and we can be assured that, should the amendment be carried, that group will immediately commence a campaign to have the five year separation period reduced or abolished.
Divorce has been introduced to many countries throughout the world and we here have at least the opportunity to assess whether divorce laws elsewhere solved marital problems or whether they simply proved to be a solution to some problems only to replace them with more serious and more intractable problems. Those who advocate divorce state that divorce does not create instability in marriage. Experience in countries where divorce is available does not bear that out. The rapid escalation of divorce in these countries underlines the fact that divorce breeds divorce and in some countries has led to what is tantamount to a breakdown of marriage as an institution.
The law permitting divorce was first introduced into England in 1857. Adultery was the sole ground on which it could be granted and then only to the innocent party. It was thought at the time that the divorce law would cater for a small number of hard cases only. Gradually the number increased. Within 18 months of its becoming law the number increased from three to 300. The man largely responsible for the 1857 Act, Lord Campbell, said: "I have been sitting two days in the divorce court, and, like Frankenstein, I am afraid of the monster I have called into existence. There seems some reason to dread that the prophecies of those who opposed the change may be fulfilled by a lamentable multiplication of divorces." His words have proved only too true. By 1978 the number of divorces in England had jumped to 143,667 which represented 39 divorces per 100 marriages in England and Wales. In 1983 the figure was 146,669 which represented two divorces in every five marriages. In 1984 the number of marriages filed for divorce was 178,940, up 6 per cent on the previous year. In 1870 there were three divorces per 100 marriages in the USA. In 1978 there were 1.13 million divorces which was more than 50 divorces per 100 marriages.
How anyone could suggest that this escalation in divorce rates with all its social implications had no bearing on the fact that divorce was available, or that divorce could lead to a reduction in marital problems, or serve as a foundation for social stability is beyond me. Could anybody facing this issue honestly believe that had divorce not been introduced into England or the USA half of the marriages in these countries would break down, or is it suggested that we in this country have some inherent qualities not given to other peoples which will protect us from the frightening consequences of the divorce scene in other countries? Once divorce is introduced and a number of divorces take place, there is an increased acceptability of it by society and later it becomes the norm and can no longer be controlled.
The figures I have given refute the case made by those favouring divorce who argue that, should divorce be made available, only those who want divorce need be involved. As I have shown, the experience elsewhere is that all marriages are put under strain by divorce and many people who have no desire for divorce are forced into it because the other spouse files for divorce on the grounds of marriage failure. Those who claim that divorce is a civil right might well remember that under no fault divorce, which this Bill proposes to introduce here, a husband can desert his wife and family, set up home elsewhere and after the five year separation envisaged in legislation obtain his divorce, leaving his divorced wife — who did not wish to be divorced because perhaps of religious convictions or a wish to preserve her rights under the law — and his children to live on social assistance. What civil rights have this wife and family in the eyes of those who call divorce a civil right? Do they count for nothing?
Professor Henry Finlay, a leading apologist for the type of divorce now proposed here, gave an honest appraisal of the situation when he said the dilemma of our society was that in relation to this matter you have to be either restrictive or permissive but you cannot be both at the same time. He said that once you start to be permissive you are committed to being increasingly permissive. The process is a cumulative one.
In Northern Ireland, where those who support divorce here would have us believe that divorce legislation is not affecting family life, the number of divorces has risen from 300 in 1970 to 1,655 in 1983, which is more than 18 divorces per 100 marriages. Should this divorce amendment be accepted the legal concept of indissoluble marriage will be abolished and from there onwards all marriages must be defined as dissoluble, and marriage becomes a legal principle, a temporary union. A commitment for life is replaced by a legal commitment to stay with one's spouse until one or other of the partners decides otherwise. It is not simply broken marriages which are affected; all marriages are implicated. The rapidly increasing statistics of divorce experienced worldwide are the inevitable follow-up.
In this Bill it is stated that dissolution of a marriage may take place where a marriage has failed and this would give to the persons concerned the right to remarry. The remaining subsections are merely a palliative to be changed later when the time is ripe. The fact that they will be incorporated in the Constitution can mean little, because, if the constitutional amendment is passed granting permission to separated couples to remarry, we can be assured, if world trends are followed, that in a few years' time the people will be asked to pass a further constitutional amendment changing the remaining sections in the proposed legislation. For example, this Bill contains a provision whereby the marriage failure must continue for a period of at least five years before a dissolution may be granted. This stipulation is more or less on a par with the Divorce Reform Act, 1969, in England. Later, the Matrimonial Causes Act, 1973, provided that no petition of divorce shall be presented within three years of marriage unless the leave of the court has been obtained. In the Matrimonial and Family Proceedings Act, 1984, that section was repealed and the new section provided that no petition for divorce shall be presented to the court before the expiration of the period of one year from the date of marriage and nothing in this section shall prohibit the presentation of a petition based on matters which occurred before the expiration of that period. There is, therefore, in essence, divorce on demand in England.
There can be little doubt, Constitution or no, that pressure will continue to build up here once divorce is introduced and with the same effects as in England.
There is reference in this Bill to the functions of the court in respect of divorce proceedings. We should remember that when the Divorce Reform Act, 1969, was being enacted in England, those in support of the Bill stressed that the divorce process would remain judicial rather than administrative. In other words, the court should have control over the proceedings rather than making the granting of divorce akin to granting a licence. Within a few years, 1973, to be precise, a special procedure was introduced whereby divorces by consent may, in effect, be obtained by post. There is no need for either spouse to attend court and the judge normally announces decrees of divorce in bulk, rather than assessing each case individually. The reality is that divorce is no longer a judicial process in England. The same situation will apply here eventually if the amendment is passed.
I would like to deal with irretrievable breakdown or, as it is now termed, marriage failure. Far from this type of divorce being restrictive, it is the basis for the most advanced and unrestricted form of divorce available today, a form which has swept through the world in the past ten years and which is sometimes known as no fault divorce. I am referring here to the essence of the type of divorce proposed by the Government in this Bill. The restrictions being imposed will prove to be of a temporary nature as is the case in every country where divorce has been introduced. Under this style of divorce, where a marriage is said to be irretrievably broken down, either spouse will be entitled to divorce without any consideration being given to the conduct of either party. I am not advocating the guilty party concept, far from it, but I could do worse than quote from the observations of Kevin Gray of the University of Cambridge in Reallocation of Property in Divorce:
The English Divorce Reform Act, 1969, effected a radical change in the legal basis of divorce, substituting for the matrimonial offence a concept of irretrievable breakdown. Much of the pressure for reform had dwelt, quite correctly, upon the abuse to which the legal process lent itself and upon the impossibility of applying a criterion of moral guilt as a determining factor in the divorce proceedings. These defects were swept away in the new law, but along with them disappeared the notion of individual responsibility. The idea that matrimonial innocence and blame could no longer serve as satisfactory tests of entitlement of divorce was expressed in statutory language which implies that the concept of responsibility is wholly meaningless in the context of marriage breakdown and is an implication which is by no means justified. The old law had few merits, but it did, at least, recognise substance in the salutary principle of living which treats individuals as ultimately responsible for their actions. The notion of individual responsibility is an intrinsic, albeit inconvenient, feature of the human condition: we would be somewhat less than human and our existence less than purposive, if our decisions and actions were deprived of the dignity of being either right or wrong.
So we would have here a no fault divorce, and we should note that a divorce will be granted not only where both spouses wish it, but, also, in cases where one of the spouses does not wish to be divorced.
If we are to judge by experience in other countries where irretrievable breakdown of marriage is always at the centre of their divorce legislation, the plain facts are that this is not a matter which is investigated by the courts. Where one spouse seeks a divorce, it is in practice presumed to prove the existence of irretrievable breakdown. How could it be otherwise? If a person states that his or her marriage has failed, how can it possibly be proved that it has not? The only effective limitation is where one spouse wants a divorce against the wishes of the other and this simply might result in the waiting period being extended. Of course, the universal trend is for the waiting period to be progressively shorter and that will inevitably apply here whatever the safeguards constitutionally.
The Bill states:
The court may, in accordance with law, grant a dissolution of the marriage provided that the court is satisfied that adequate and proper provision having regard to the circumstances will be made for any dependent spouse and for any child of or any child who is dependent on either spouse.
That sounds very well but, in practice, has been shown to be meaningless elsewhere. Unless the people concerned are reasonably well off, it means little or nothing. The vast majority of families in this country, whether PAYE workers, small farmers or unemployed people, have a relatively low standard of living. What provision can any court make for the deserted spouse and children of a person in such circumstances, who proposes to remarry and raise another family? Indeed, irretrievable breakdown can be engineered by one of the spouses, more than likely the man. He simply moves out of the house and, after the requisite number of years, applies for a divorce. If the purpose of his original desertion of his wife and family is to marry somebody else, then the likelihood is that he has gone to live with her and perhaps has a second family by the time the five years are up. Unless he is relatively well off, how does a court decide as to what adequate and proper provision he can make for his wife and children? Is it not a fact that in the vast majority of cases the State will have to step in and take over the financial responsibilities? He will get his divorce, the taxpayer will foot the bill and in all probability, as is happening in other countries, the former wife and family will be left living on a subsistence allowance. The cost of divorce to the State in Britain is now £1,000 million per year.
Even if a man has a decree for maintenance granted against him, will not that decree become meaningless when the second wife and family appear. The reality is not in the words of the Bill, but in what has happened in other countries where similar divorce laws were implemented. In England, for example, only a tiny percentage of divorced women receive any financial support from their husbands. Indeed, the trend of modern thought in England, as in many other countries which have got divorce laws, is that after a divorce has been granted, both spouses should be regarded as single people, as they were before marriage, and that they should have no responsibility of any kind towards one another.
Men have been pushing this theory even further by stating that they should not have a responsibility towards the children, because the children did not live with them. It is pointless to say there is a subsection in the Bill which states that adequate and proper provision must be made. Such a provision has been inserted in divorce legislation in many countries and it has proved useless. Might I further add that, while supporters of divorce claim that divorce cures bitterness, the English Law Commission, with reference to the bitterness and resentment surrounding the enforcement of financial remedies, points to the fact that in England in 1978, 2,439 men went to prison for wilful refusal and culpable negligence to pay maintenance.
In the Family Home Protection Act, 1976, wives were given substantial protection in respect of the family home. In the event of divorce and remarriage, which wife's rights will be protected in respect of the home? The fact is that the experience in other countries shows that, after divorce takes place, security in the home can no longer be guaranteed in law. In England, for example, the statutory protection for wives against being evicted from the home generally ceases to operate after divorce.
In countries where divorce has been introduced, the succession rights of married women have been substantially reduced. The Succession Act, 1965, seeks to protect the wife's right to occupy the home after the husband's death. Under existing law, a woman has substantial succession rights. Where the husband does not make a will and there are no children, the wife is entitled to all his property and if there are children, she is entitled to two-thirds of his property. A wife is entitled to half the estate where her husband makes a will. As soon as a marriage is dissolved, the divorced wife loses her rights under the Succession Act.
Lord Simon, a former President of the Divorce Division of the English High Court, speaking on the Northern Ireland Divorce Order of 1978, said that he had no doubt that the measure, like the 1969 Divorce Act in England, would be utterly unjust to married women.
Once again, I wish to make the point, as I did in my speech on the report on marital breakdown, that my major concern in this whole matter is for the children. Children are the innocent victims of divorce situations. They have no responsibility for it and they have no say in its outcome. They suffer severe psychological stress as well as economic loss. They cannot cope with divorce.
Before dealing further with this matter, I wish to refer to the paragraph on children in a document circulated I presume, to other Deputies as well as myself, entitled Children & Divorce: Existing Research, by the Divorce Action Group. In this paragraph they refer to research carried out by Hendel in 1960, by West in 1969 and by McCord & McCord in 1969 to support the case they make that where there is conflict in the home, children are better off if parents divorce. The fact is that much more recent research finds that the contrary is true and that divorce is always a disaster for children even where the parents' marriage is unhappy or violent.
There can be little doubt that the Divorce Action Group had got access to all recent research on the subject. What is particularly disturbing is that they chose to ignore it because it did not suit their case, and nothing can better illustrate the weakness of their argument in respect of the seriously adverse effect of divorce on children. The matter we are debating here is of very serious moment and the people of this country are entitled to the full facts of the effects of divorce on children before coming to a decision on the amendment.
The director of the Yale Child Study Centre, Albert Solnit, said that divorce was one of the most serious mental health crises facing children in the eighties.
I am aware that it is sometimes argued that divorce is desirable because it is said that a child will be happier where his parents are divorced rather than living in family discord. This argument equates separation and divorce. While it may happen that because of deep seated disharmony separation may be desirable, it does not follow that divorce is desirable and, indeed, when one notes the economic damage to women and children resulting from divorce, there is good reason to distinguish between separation and divorce. I might add that many divorces have been granted abroad where there is no evidence of continuing matrimonial turmoil.
A recent study in America has shown that less than 10 per cent of the children surveyed experienced relief at the time of separation even though 30 per cent of them witnessed scenes of physical violence between the parents. It was found that though the parents were unhappy, the children were reasonably happy because they did not believe they were any worse off than other families.
Dr. Futterman, Clinical Professor of Psychiatry and Pediatrics at the Child Study Centre of Yale University, has stated that recent studies have challenged the earlier belief among professionals that divorce is better for children than living with unhappy marriages and a study by Wallerstein & Kelly demonstrates that children actually prefer an unhappy marriage to their parents' divorce.
Michael Freeman of University College, London, 1981, notes that Wallerstein and Kelly 1980 found, so far as pre-adolescent children are concerned that divorce was a bolt of lightning that struck them when they were not even aware of the existence of a storm and that at the time the parents separate, the child is intensely worried about what is going to happen to him. Whatever its shortcomings, the family is perceived by the child as having provided the support and protection he needs. To him the divorce signifies the collapse of that structure and he feels alone and very frightened.
At a time of divorce children and adolescents experience a heightened sense of their own vulnerability. They suffer depression, sleeplessness, restlessness and difficulty in concentration. The loneliness of the child is very deep and very painful and it is frequently wedded to a sense of rejection and a yearning for the intact family. The child's loyalty is strained and pulled in both directions towards each individual parent.
Children of divorced parents suffer from a feeling of deep insecurity. They feel that, having been abandoned by one parent, the other parent will also abandon them. They feel the need to be near that parent and often no longer want to go to school or to go out to play in case the remaining parent will have gone away when they come home. Children of all ages can suffer as a result of divorce. Many independent studies show the recurring picture of children suffering guilt, fear, loneliness and anger and point to the very important effects of parental conduct on children. If one were to ignore this dimension and concentrate solely on the relationship of parents to one another, serious damage can be caused to children. Clearly from the child's point of view divorce is certainly not the solution for unhappy marriages.
The deep seated detrimental effect of divorce on children can last a lifetime. Even where divorces were co-operative ones, without acrimony, Dr. Edward Futterman of Yale University Child Study Centre 1980 found that children from such apparently benign marriage dissolutions may come to the child psychiatrist long after the actual divorce with many psychological problems. There are often, too, problems experienced by the child with step parents. Families in these circumstances are often beset with jealousies and conflicts of loyalty not found in traditional families. Children sometimes cannot adapt to the new family.
This Bill claims that the rights of maintenance of children will be protected in law. The evidence from countries with a system of divorce similar to that proposed in the Bill is that the interest of children is largely ignored, even though apparently catered for in legislation. When the Divorce Reform Act, 1969, was being enacted, those favouring the legislation gave assurances that the interests of the children would be protected in divorce proceedings. It was stated that a divorce decree would not be granted unless the court was satisfied that the arrangements made for the children were satisfactory or the best that could be devised in the circumstances. Note the similarity in the wording of the Bill before the House. Experience has again shown that in nine cases out of ten the courts do not even adjourn proceedings for further information regarding the child's welfare where the parents are agreed on the custody of the children. There is, in fact, no concern for the future lives of the children.
In a report published in April 1981 entitled Maintenance: Putting Children First, the National Council of One Parent Families, referring to the maintenance of children after divorce in England, state that dependent children are involved in over 60 per cent of the divorces and that there are very strong indications that very little maintenance is paid to the vast majority of one parent families that are a consequence of divorce and that 61 per cent of one parent families headed by women are dependent on State benefits as their main source of income.
In America, Professors Sabilas and Ayers, 1977, state that often the interests of children is the least considered area in the American way of divorce. So far as children are concerned, clearly divorce is not the answer. Little attention is paid in divorce cases to the interests of children even though their rights are laid down in legislation. In no country in the world is divorce granted in the interests of children.
If I am to judge by literature and statements from those supporting divorce, the motivation appears to be compassion for persons locked in intolerable marriage situations suffering mental, emotional and physical cruelty from their spouses or deserted by their spouses. Such persons deserve sincere sympathy and compassion and the State must gear itself to help them to a much greater degree than heretofore. There are, however, persons other than the marriage partners affected by divorce. These, also, deserve sympathy and compassion. As I have already said, none is more deeply affected by divorce than children. Marriages may cease, but parenthood is for ever.
The report of an ecumenical working party on the effects of divorce on children set up in 1980 by the then Archbishop of Canterbury, which reported in 1983, bears out all I have said on the tragedy of children caught in divorce situations. In an appendix to the report is the following, and I quote:
Divorce is always a disaster for children. This is true, even if their parents' marriage was stormy, unhappy or violent, or any combination of these. It is true, also, of civilised divorces. Divorce must be seen as one of the hazards of childhood.
There are about one million children in Great Britain at present who have divorced parents. It is estimated that 1.6 million children there will have divorced parents by the end of the century. Nothing could more vividly display the escalator effect of divorce.
As I said here on a previous occasion, between 1950 and 1980 the divorce rate in the United States of America doubled. Since 1972 an additional one million children have been affected there by their parents' divorce. It is estimated that 45 per cent of the children growing up in the United States will see the separation or divorce of their parents.
Dr. Michael Rutley, Department of Child Psychiatry, Institute of Psychiatry, Denmark Hill, London, states:
Sometimes there is a tendency to view divorce as if it were a positive solution to destructive family functioning. For the child, according to this view, the resolution of the family conflict should be generally beneficial, with the loss of one parent from the household as the only likely stressor in the situation. Recent research, especially that by Hetherington (1978, 1979), by Wallerstein & Kelly (1980), and by Hess & Camera (1979) has clearly shown that these assumptions are wrong. The assumption that divorce necessarily brings conflict to an end is mistaken and it is certainly not the case that the absence of one parent is the only potential stressor for the child. In the immediate aftermath of divorce, both parents tend to be inconsistent, less affectionate and lacking in control over their children. The mothers become depressed, self-involved, erratic, less supportive and ineffectually authoritarian with their children. Fathers often begin by being unduly indulgent and permissive but then increase in restrictiveness and in the use of negative sanctions. The post-divorce family relationship between parents and between each parent and the child play a major role in determining the consequences of divorce for the children.
One thing is certain. The clean break that many parents hope a divorce will bring is a fantasy, at least as far as children are concerned. For them, there is always some carry-over from the past. It can be a case that adults improve their situation at the expense of children.
Can we as a caring community make a decision which will place the future of Irish children in such jeopardy?
The argument is being put forward that religious conviction in Ireland would be strong enough to withstand the introduction of divorce and that a small minority only would avail of it. If one is to go by experience elsewhere, this expectation can hardly be said to be justified. In countries where divorce is extant, divorce built up a social pressure which became stronger than moral or religious resistance. The sharp increase in the divorce rate in Northern Ireland since 1979, when that area was brought into line with English legislation, supports the point made. In Northern Ireland the rate of divorce was one in every 40 marriages in 1970. In 1975, a mere five years later, the rate had risen significantly to one divorce in every 25 marriages. In 1983, it had leaped to one divorce in every six marriages. These statistics have a frightening message for us, and the only conclusion one can draw from them is that the more readily available divorce becomes, the more frequently it is sought.
In a report entitled Demographic Trends in Northern Ireland, published by the Economic Council there, it is stated that in 1984 divorced men remarry four times more often than divorced women. These figures further highlight the position women find themselves in when divorced and support my argument that women are badly affected by divorce, being left, as a rule, to look after the family, often on a subsistence income, while the man sets up home elsewhere. We should remember that that is happening in a part of Ireland.
Marriage and the family are under great pressure at present. Marital breakdown is a growing problem in this country. From what I have said today and on previous occasions on the subject, it is clear that divorce is not the remedy and that, indeed, the cure would be worse that the disease. If we are to fulfil the constitutional pledge which I have quoted, we must rather concentrate on the many and varied factors which give rise to tensions within marriage and on the necessary supports for marriage, so as to alleviate and, where possible, eliminate these factors. I believe that the subsection for the Constitution which I have quoted makes it incumbent on the State to play a major role in aiding those with marital problems so as to improve their position in the short term by gearing our social and legal systems to a much greater degree toward support for marriage and the family and through developing counselling facilities for persons proposing to marry and for those already married. With regard to married couples, a system must be developed where problems can be identified quickly and dealt with before they become intractable.
The need for the development of counselling services at the pre-marriage stage is urgent. As I mentioned in a speech here on the report on marital breakdown, the Churches have given considerable attention to this matter in recent years with worthwhile results. However, the Churches have limited resources and, as the stability of marriage and the family is the cornerstone to the stability of the State, it is incumbent on the State to recognise its responsibilities in this area and to make adequate finances available to ensure that the best possible services are available to those in need and that every means will be utilised to publicise these services. As I mentioned already, the Churches have voluntary advisory bodies which have got a high level of professionalism but which need money to develop their facilities so as to provide easily accessible and effective counselling services. The State should recognise these voluntary bodies, finance them and co-operate with them so that they can effectively carry out their duties. I do not feel, however, that the State should be directly involved in this work where a delicate and particularly caring approach is needed.
My experience of the personnel involved in Church advisory councils is that they are well trained and very professional. This is a vitally important aspect. Poorly trained personnel would wreak havoc on an unstable marriage. The return to the State for this type of expenditure is exceptional and, of course, the impact on the married couples involved is incalculable.
A relatively mature approach and proper training go a long way to guarantee that a person will perform well with the job in hand. It is regrettably only too true that for the most important vocation in the lives of the vast majority of people, that is to say, marriage, maturity does not appear to matter and there is little or no training whatsoever. Young people meet, fall in love and get married and that appears to be that. There is no more serious decision in the lives of young people, bearing in mind its responsibilities and consequences, than the decision to marry and yet few contracts are more easily entered into. It is, therefore, of the utmost importance that young people should be as mature as possible before entering into marriage so that they can fully appreciate its implications and be prepared to undertake its responsibilities and, therefore, while welcoming the decision to raise the minimum age for marriage to 18 years, I, personally, would like to see it raised somewhat higher.
The age at which two people marry is closely associated with the likelihood of marriage breakdown. Experience in Britain shows that the figures for marriage breakdown generally decline the older the spouses are when they marry and that those who marry in their teens are twice as likely to experience marriage breakdown as those who marry between 20 and 24 years of age. If the 1980-81 divorce rates in Britain were to continue, almost three out of every five teenage bachelor grooms and one in two teenage spinster brides would eventually divorce. These figures show how susceptible to marriage breakdown teenage people are and the need for particular care in deciding on the minimum age for marriage.
I cannot sufficiently emphasise the importance of education in the preparation for marriage. I am not now referring simply to pre-marriage or post-marriage counselling, but to the gearing and restructuring of our education system towards the development of the whole person as an individual human being, and in relationships with fellow human beings.
Our education system, however well it may ensure academic and technical achievements, will have failed if young people are not taught to respect their fellows. I believe that a properly structured development of our educational system would transform the scene in years to come.
We are told by Government sources that efforts will be made to deal with problems so as to avert a breakdown in marriage, and that a whole variety of counselling services will be made available.
Experience in other countries and, indeed, our knowledge of human nature, teach us that divorce, once introduced, will become an end in itself. The Government will reckon, having given the opportunity to married couples to opt out and to marry again and having made provision mainly through the social welfare services for the other spouse and dependants, that they will have done their duty and will no more concern themselves here than the Government in Britain does about reconciliation and retrieving a failed marriage.
We have people being interviewed by the media all over the country stating that they fully support divorce, sadly without concerning themselves about the consequences. It might be helpful to remind them that should a divorce situation hit somebody in their own family circle, their attitude might quickly change. I spoke to people who experienced such a situation in America and they told me that the grief and anguish this causes to most members of a family are indescribable. The worry of a father and a mother when a son's or daughter's marriage fails and goes to the divorce court is pitiable. The court must know the facts, all of the facts and the cloud hanging over the whole family during the divorce proceedings and after is sad indeed. In Britain and America the sword hangs over every family and even when people rejoice at a wedding, the clergyman or registrar and particularly the older people present cannot help wondering at the back of their minds whether next year, or five years hence, will see the loving and happy couples parted in divorce. The chances of survival in both these countries is only about fifty-fifty.
It is therefore important that in particular young people before casting their votes should ask themselves if what they are doing is opening the door to problems in the divorce courts, maybe for themselves, maybe for their brothers and sisters, maybe indeed, for their own children, and then ask themselves if, when such a day comes, they will be happy that they had, through their votes, precipitated such a family crisis. Of one thing they can be assured, should divorce be introduced through the referendum, there can be no turning back.
We all know troubled couples whose marriages are in difficulty. We have compassion for them and are saddened to see them tied in an impossible situation. If we legalise divorce, some of these troubled people may be helped. That is the short term view. The long term view, however, in view of what I have said in the course of my speech, must be that there should be no legal divorce.
The Government committee on marital breakdown stated that the great majority of our marriages are stable and viable. The marriage scene in divorce countries, as I have shown, gets worse by the year. In such countries, the phrase "the breakdown of the home" has become a terrible reality with an army of psychiatrists and lawyers trying to make sense of the lives of countless young people, often living with one of the divorced parents who is perhaps married with a new family, and unable to relate to one another.
The real answer to the troubled couples I referred to is help them in their marriages in every possible way and, if possible, to help them rebuild their relationship or where that is impossible to ensure through judicial or legal separation that having separated, they are properly provided for. Finance must be made available by the Government so that judicial or legal separation will be made easily accessible to people who need these procedures. The price of divorce is a rapid increase in the number of broken homes and a miserable marriage scene stretching out before us.
From the points that I have made during the course of my speech, it is clear that women and children are the ones who will suffer if the constitutional amendment is passed and I would ask all our people to make themselves fully informed on the matter before casting their votes.
I shall now summarise what I have said, regarding women, children and divorce.
The law in Ireland at present allows a husband and wife, whose marriage has broken down to separate and, through judicial separations, legal separation or civil nullity, provision can be made for the wife and children, and problems such as maintenance, succession, family home, custody of children, etc. resolved.
It is vitally important that people should be fully informed about judicial and legal separation and it is the duty of the Government to let our people know what their rights are under our separation laws, and to make the necessary finance available to improve on these laws and to make them more accessible to people who need them.
In the amendment, therefore, we are concerned only with granting the right to remarry. Laws giving the right to separate are already there.
If the amendment is passed, one of the spouses can demand and get a divorce, on the grounds of the failure of the marriage whether the other spouse wishes it or not.
Once the divorce takes place the wife is no longer a dependant. The Succession Act seeks to protect the wife's right to occupy the home after the husband's death.
Under the Succession Act 1965, if a husband fails to make a will, the wife is entitled to all of his property if there are no children, and two-thirds of his property if there are children.
If her husband makes a will, she is entitled in law to half of his property whether he likes it or not. After divorce these rights are lost to the wife.
Under the Family Home Protection Act, 1976, wives were given substantial protection in respect of the family home. Experience in other countries shows that, after divorce takes place, security in the home can no longer be guaranteed by law. In England, the statutory protection for wives against being evicted from the home generally ceases to operate after divorce.
After the husband's death where divorce has been involved, the second wife will be entitled to the widow's pension, while the first wife in many instances will exist on social assistance.
The amendment states that the court must be satisfied that adequate and proper provision, having regard to the circumstances, will be made for any dependent spouse and children.
The vast majority of families in this country, whether PAYE, small farmers, or unemployed people, have grave difficulty in living on their incomes. In most cases there will be no extra money to provide for the first wife and family when the second marriage takes place. In such circumstances, the court can grant only social assistance to the first wife and family, who will then be forced to exist on it.
In England, where the same conditions obtain in their divorce laws, only a tiny percentage of divorced women receive any financial support from their husbands. In England 61 per cent of one parent families headed by women are dependent on State benefits as their main source of income.
If divorce is added to our Constitution, the second marriage will have all the rights prescribed under the Constitution and all the supports that were there for the first family will then pass to the second family.
If, for example, the court allocates a part of the husband's income to his first wife, because the Constitution declares that the family rights are antecedent and superior to all positive law and as this now applies to the second family, the second wife can have a constitutional right to contest the right of the first wife to the allowance and with the full force of the Constitution behind her claim.
In countries where divorce is available, it is now becoming the practice to put a time limit to the period in which provision must be made for the former wife.
In the appendix to a report of an ecumenical working party on the effects of divorce, set up by the Archbishop of Canterbury in England and reporting in 1983, is the following:
Divorce is always a disaster for children. This is true even if their parents' marriage was stormy, violent, or any combination of these. Divorce must be seen as one of the hazards of childhood.
The director of the Yale Child Study Centre in America, Albert Solnit, said that divorce is one of the most serious health crises facing children in the eighties.
Dr. Wallerstein and Dr. Kelly, in their study of children and divorce, found so far as pre-adolescent children are concerned that divorce was a bolt of lightning that struck them when they were not even aware of the existence of a storm and that at the time the parents separate the child is intensely worried about what is going to happen to him.
At the time of divorce, studies tell us, children and adolescents suffer depression, sleeplessness, restlessness and difficulty in concentration. The loneliness of the child is very deep and very painful.
The deep-seated effect of divorce on children can last a life time. Dr. Edward Futterman of Yale University found that children from divorces, which were co-operative ones without acrimony, may come to the child psychiatrist long after the actual divorce with many psychological problems.
Dr. Futterman, Clinical Professor of Psychiatry and Paediatrics at the Child Study Centre of Yale University, states that recent studies have challenged the earlier belief among professionals that divorce is better than living with unhappy marriages.
Wallerstein and Kelly demonstrate that children actually prefer an unhappy marriage to their parents' divorce.
The Bill claims that the rights of maintenance of children will be protected in law. The evidence from countries which have divorce is that the interests of children are largely ignored, even though catered for in legislation.
In a report published in April 1981 entitled Maintenance — Putting Children First, the National Council of One Parent Families, referring to the maintenance of children after divorce in England, state that dependent children are involved in over 60 per cent of the divorces and that there are very strong indications that very little maintenance is paid to the vast majority of one parent families.
In America, Professors Sabilas and Ayers state that often the interests of children is the least considered area in divorce.
Experience from other countries points to the fact that provision for the wife and family in divorce cases is catered for largely by social welfare payments. It is estimated that divorce costs the British public £1,000 million a year.
In Northern Ireland the rate of divorce in 1970 was one divorce in every 40 marriages. By 1975, it was one divorce in every 25 marriages and in 1983 it was one divorce in every six marriages. In Northern Ireland divorced men remarry four times more often than divorced women. Women, in most instances, are left to look after the family, often on subsistence allowance, while the men set up another home. Remember that this is happening in a part of Ireland.
Experience in other countries shows a rapid increase in the rate of divorce. In 1978, the number of divorced in England jumped to 143,667 or 39 divorces in every 100 marriages. In 1983, the number had risen to 40 divorces in every 100 marriages. The number of marriages filed for divorce in 1984 was up by 6 per cent on 1983. In 1978, there were 1.13 million divorces in the USA which was more than 50 divorces in every 100 marriages. If divorce is introduced here, the same pattern will follow.
The figures I have given refute the case made by those favouring divorce who argue that, should divorce be made available, only those who want divorce need be involved. As I have shown, the experience elsewhere is that all marriages are put under strain by no fault divorce, and many people who have no desire for divorce are forced into it because the other spouse files for divorce on the grounds of marriage failure. I might add that second marriages after divorce have themselves been found to show a high rate of breakdown. The only conclusion one can draw from these figures is that the more readily available divorce is, the more frequently it is sought.
The referendum Bill states that a marriage must have failed for five years before a divorce can be granted, and this is claimed to be a safeguard. The Divorce Reform Act, 1969, had much the same provision in England. The Matrimonial and Family Proceedings Act, 1984, reduced the period to one year. Once the divorce provision is accepted here, the period of waiting will follow the same pattern.
I might add that conditions introduced into the Constitution by this referendum will make little difference. If divorce can be introduced by a referendum, pressure will build up to hold a referendum to change these conditions.
There is no reference to separation in the Bill. The five year separation period required before the application for divorce will be entertained will be legislated for in the Dáil and Seanad if the referendum is passed.
This Government or any future Government can through legislation reduce the separation period to three years or one year, or abolish it altogether. It is not correct to say that the people must be consulted again by referendum to have the separation period reduced.
In all these circumstances, where the wife and children fare so badly in divorce situations and where so much irreparable damage is caused to the whole fabric of society, I strongly appeal to the people of Ireland to reject the amendment to the Constitution.