An Bille um an Deichiú Leasú ar an mBunreacht, 1986: An Dara Céim. Tenth Amendment of the Constitution Bill, 1986: Second Stage.

Tairgim: "Go léifear an Bille an Dara hUair."

I move: "That the Bill be now read a Second Time."

The purpose of the Bill is to enable a referendum to be held so that the people will have an opportunity of deciding whether they wish to amend the Constitution to enable divorce legislation to be enacted. I need not stress that this is one of the most important proposals to come before the Oireachtas and the people in recent years.

The debate on divorce has gone on for some years now. It has enabled the issues to be identified and the feelings and views of different groups to be made plain. Divorce was the subject of some discussion in the New Ireland Forum, and it was considered in depth by the Oireachtas Joint Committee on Marriage Breakdown which furnished its report a little over a year ago. That committee, which dealt in great detail in its report with all aspects of family law, marriage and the ways in which the institution of marriage can be protected, considered it necessary as part of its investigation of the problem of marriage breakdown to examine the question of whether divorce should be introduced. The report sets out clearly the main arguments for and against the introduction of divorce and it was the view of a majority of the committee that a referendum should be held.

The report of the committee was fully and extensively debated in both Houses of the Oireachtas over a long period. Deputies will be aware also that, before bringing forward the present proposals for the approval of the Government, the Taoiseach, accompanied by myself, had full discussions with all the main Churches on a range of topics arising from the joint committee's report dealing with marriage, including the question of divorce.

During the course of the debate over recent years, a succession of opinion polls have been conducted to ascertain the views of the people.

While there may be some doubt about opinion polls as a method of accurately ascertaining the views of the general public, I believe that the findings revealed are significant and cannot lightly be ignored. I think it fair to say that they have shown an increasing trend in support for some form of divorce. I say "some form of divorce" because I think it is common cause with most people who support the introduction of legislation permitting divorce that what they would like to see is not free-for-all, unrestricted divorce but a regime which would enable the bond of marriage to be broken only in circumstances where it is quite clear that the marriage has failed and that there is no realistic hope of its revival. All who have contributed to the debate have also recognised that there is an increasing incidence of marital breakdown in our modern society, however much they may differ on what should be the correct response to that unfortunate development.

It is in that developing situation that the Government feel that the time is now appropriate to give the people an opportunity to decide on this important issue. It is, of course, a matter for the people to decide, not the Government. The present Bill is before the House because the Government and the Oireachtas have a duty to present the issue to the people.

Before discussing the details of the Bill and saying something about the further proposals, which are particularly relevant to the subject of the Bill and which the Government are committed to bringing forward if the proposal in the Bill is approved by referendum, I would like to make a few general remarks.

It is wrong to contend that divorce legislation "defines" all marriages as dissoluble. It does no such thing, rather it defines the circumstances and conditions in which a marriage has ceased to be a source of happiness and strength to those involved may be brought to an end. The constitutional amendment proposed in this Bill and the further legislation which the Government will propose will, together, provide that a marriage can be dissolved in law only in very restrictive circumstances. There is no compulsive power in this amendment nor will the supporting legislation contain any obligation on those who do not wish to do so to use the mechanism it will set up.

In promoting legislation to permit divorce the Government are not opposed to marriage. The Government are fully committed to the protection of marriage so far as that can realistically be achieved and I hope to satisfy the House that the legislation that the Government are committed to bringing forward, if the proposal in the Bill is approved, will be carefully designed to recognise the need to protect marriage and to contain and minimise as far as possible the effects on the dependents of granting a divorce. The Government's proposals are simply a recognition of the fact that many marriages do in fact fail and will continue to fail and that there are cases in which nothing short of divorce will provide an adequate solution.

As I have said there is, indisputably, an increasing number of marriages which have failed. Whether or not divorce is introduced it would be foolish to think that that trend will not continue or that men and women will not continue to leave their married partners and form other unions. The law must eventually, I would suggest, take account of that fact — otherwise there would be a danger that the law would lose touch with the lives of a growing number of people and that could result only in the law coming into disrepute.

In deciding on the form of the constitutional amendment that should be presented and in forming its further proposals, the Government have taken fully into account the views expressed by the various persons and groups who have contributed to the debate, including the views expressed by the various Churches in their meetings with the Taoiseach and myself. The Government have carefully weighed the various arguments on each side, both from the point of view of the individuals directly involved and of society as a whole. In the Governments considered view, the balance of the social good lies with the introduction of divorce in limited circumstances.

As a general remark, I would like to bring one point to the attention of the House. It has been stated, and no doubt will be stated again over the coming weeks, that the history of divorce legislation in other countries shows a development along a particular track and it will be contended that once we pass any legislation permitting divorce there will inevitably be a speeding up process. That is an argument that will be made and one that deserves to be examined. But I would ask the House to bear one very important factor in mind. The Bill that we are discussing is the Bill to amend our Constitution. We are proposing to put a provision in the Constitution that will define and delimit the circumstances in which a divorce can be granted by law. Once that provision has been entered in the Constitution no fundamental change can be made unless the Constitution itself is again changed. That is a situation which, to my knowledge, is peculiar to this country and is a circumstance governing the law on divorce which equally would be peculiar to this country.

The Bill before the House proposes that the Constitution should be amended by the deletion of subsection (2) of article 41.3, which states that no law shall be enacted providing for the dissolution of marriage, and its replacement by a new provision.

It did not seem to the Government that the prohibition on the enactment of divorce legislation could simply be deleted without the insertion of a suitable replacement provision. That view was expressed by the Joint Oireachtas Committee. Such a replacement provision is necessary for two reasons.

First of all, simply to delete the present prohibition would run the risk that any subsequent divorce legislation that might be enacted might be seen to be in conflict with other provisions of the Constitution guaranteeing the protection of the family and marriage. A positive provision specifically enabling divorce legislation to be enacted was therefore necessary.

Second, the Government felt that it was also necessary that the new provision should indicate clearly the type of divorce legislation that the Oireachtas might enact. Throughout, the Government were concerned to ensure that the constitutional amendment and any further divorce legislation they would subsequently introduce should reflect the principle that divorce was to be obtainable only in restricted circumstances where it was clear beyond doubt that the marriage had failed and that proper provision had been made for dependent spouses and children.

In line with that view the new provision proposed for insertion in the Constitution would allow divorce only where a court was satisfied that the marriage had failed, that that failure had continued for a period of, or periods amounting to, at least five years, that there was no reasonable possibility of reconciliation between the spouses, that any other condition that might be prescribed in law had been complied with and that adequate and proper provision having regard to the circumstances is made for any dependent spouse and children.

I would draw the attention of the House in particular to the construction of the provision that is proposed in which all of those conditions which I have just outlined must be each and every one of them, satisfied before a decree of divorce can be granted by a court.

The concept of "failure of marriage" has been used in the proposal rather than a concept such as "breakdown of marriage" since in the Government's view it indicates more clearly the idea that the marriage has ceased to be a marriage in anything but name.

As I have said, the conditions set out in the proposed amendment are cumulative and must, of course, all be complied with before the court could be satisfied that a decree of divorce should be granted. They are all conditions to which the Oireachtas would have to have regard in considering the type of divorce legislation that might be enacted and are conditions which, of course, could not be diluted by subsequent legislation. They indicate clearly that what is intended is that divorce would be available only in limited circumstances where it is clear beyond doubt that the marriage has come to an end and that fact has been proved over a period of five years and where proper provision has been made for dependants. The requirement that such other conditions as may be prescribed by law have been complied with means that the Oireachtas may impose other restrictions if it so desires and the legislation which the Government propose to introduce, in the event that the constitutional amendment is approved, will contain such further conditions.

I would suggest that the proposed amendment strikes a proper balance between the need to include in the Constitution a clear statement of the type of divorce that would be acceptable to the people and the need to allow the Oireachtas freedom to add, should it so desire, other additional conditions which of course could never detract from the effect of the constitutional provision. I would suggest also that the proposal reflects what a substantial majority of people would see as a moderate and reasonable response to the cases of people whose marriage has failed, with due regard to the general social good.

I would like to refer here to comments that have been made in regard to the effect of divorce on the rights of the family under the Succession Act. I must point out first of all that the children of a marriage which has been dissolved will remain entitled to succeed as children of their divorced parents on the intestacy of their parents and will still be entitled, where a will is made, to apply to a court for proper provision to be made for them out of the estate of a divorced parent if such provision has not been made by will or otherwise. As regards the spouses, it will, of course, be a consequence of divorce that a person who has ceased to be married to another by reason of the dissolution of the marriage, would not be regarded as the widow or widower of the other, for the purposes of succession when that other dies and would lose rights as a result.

As part of the proposals outlined in the statement which accompanied the publication of this Bill a court granting a divorce will have new powers to make orders as to the ownership of property of the spouses. This will enable the court to make some compensation for loss of expectations on the death of the other spouse, if that is appropriate. It is, of course, a normal feature of the standard form of separation agreement usually entered into by estranged spouses that each renounces his or her succession rights on the death of the other. This is the case in practice even though it is not recognised, or perhaps not realised, by many of those who comment on issues raised by the Bill.

As Deputies will be aware the Government, in circulating the Bill before the House, also published a statement of their intentions in regard to marriage, separation and divorce. The purpose of that statement was to inform the people of the type of divorce legislation which it is the Government's intention to submit for the consideration of the Oireachtas should the proposal in the Bill be approved. That statement, of course, refers also to other legislation proposed in the family law area. The Government regard it as of the highest importance that the people, when voting in the referendum, should know as clearly as possible the type of divorce legislation they may expect if they give an affirmative vote. I think I should therefore briefly indicate for the record and for the benefit of Deputies who may not have taken the opportunity of reading the Government statement of intention, what these proposals are.

The central feature of the proposals to be enshrined in the further legislation is that the spouses must prove that they have been separated for a period of, or periods amounting to, at least five years before a divorce can be sought. Such a period of separation will provide, as I think most people will agree, the clearest possible proof that the marriage has in fact failed. The proposed amendment to the Constitution, considered in conjunction with these further proposals cannot, in any way, be represented as providing for easy or unrestricted divorce.

People who have already been separated for five years at the time the legislation to provide for divorce comes into force will be able to apply for a divorce once they have proved that fact and also that proper provision has been made for dependants. As regards people who are not separated for five years at the date of enactment of the legislation, it will be an additional condition to the general requirement of five years' separation that they will first have to obtain a decree of judicial separation or enter into a separation agreement which is then approved by the court. If they so desire, they may then present a petition for divorce when two further years have elapsed. The purpose of requiring a decree of judicial separation or court order approving a separation agreement is twofold.

It is designed to protect the interests of the dependent spouse and children and to provide a period of reflection before the final step to terminate the marriage would be taken. It will protect the interests of dependants because it means that, long before a petition for a divorce is presented, both parties will have had to address themselves, under the supervision of a court, to the various questions that must be settled in regard to maintenance, custody of and access to children and property owned, before a separation, and ultimately a divorce, could be granted, and arrangements will have been put in place to cover these matters. The court subsequently considering an application for divorce will then have ample opportunity of judging how effective the arrangements made have proved to be in practice over a lengthy period and in the light of that judgment and knowledge, of deciding whether to confirm or to vary the arrangements.

In order that the court will have the ability to order the best possible arrangements to protect the interests of the parties and their dependants, it will be given full power to make orders in regard to maintenance, children and property owned by the spouses. At present a court can only decide disputes between spouses as to the ownership of property — it cannot change the ownership of property in favour of a spouse who cannot prove an existing beneficial ownership. A provision in the proposed legislation for the making of property orders is a very significant new departure and one which the Government believe is an essential component of the provision in relation to divorce.

Under the proposals, applications for judicial separation, for an order approving a separation agreement and for a decree of divorce will all fall to be made to a family court which will sit separately from other courts. Each sitting of the family court will be presided over by one of a number of Circuit Court Judges specially assigned for the purpose. The procedures in the court will be less formal than the usual court procedures and the court will have available to it counselling services which will enable it to decide, first of all, whether there is any realistic possibility of reconciliation between the parties. If it appears that there is no such possibility, the court will then consider whether counselling or mediation services should be availed of to enable a conciliation process to be undertaken with a view to encouraging the parties as far as possible to come to mutually acceptable arrangements on the various issues that need to be settled and with as little bitterness as possible.

In the case where the spouses have themselves come to an acceptable arrangement the court will no doubt find itself in the position of being able to endorse that arrangement, if it is satisfied that the interests of dependants are adequately and properly taken care of by the arrangement. Otherwise, if the couples fail to come to an acceptable agreement, or indeed to any agreement, the court will make the necessary orders to ensure that dependants are protected or it will refuse the application for divorce. Contrary to the impression that seems to have gained ground in some quarters, the provisions we have made here, with the emphasis on proper provision being made for dependent spouses and children, means that the proposals we are putting forward based on this constitutional amendment are a great deal more child centred than the divorce legislation in other countries with which comparisons will be made over the next few weeks.

A number of counselling agencies already exist. The statement of intention mentioned three — The Catholic Marriage Advisory Council of Ireland, The Marriage Counselling Service and The Marriage and Family Institute. It would be the Government's hope that the expertise of those agencies would be availed of, if they are willing to participate in the process. If that is not possible, however, new counselling services will be provided. As Deputies will be aware, a pilot mediation scheme has also been established by the Minister of State with responsibility for Women's Affairs, Deputy Nuala Fennell, and that scheme will also have a part to play.

The law relating to judicial separation will play a crucial part in the process which I have outlined. The present law, on any view, requires some amendment. At present the grounds for obtaining a decree of judicial separation are somewhat limited — they are cruelty, adultery and unnatural practices. The further legislation proposed will introduce a number of new grounds — these will be desertion, including constructive desertion, separation for three years if one spouse does not consent to a decree and separation for one year if both spouses consent to the grant of a decree. These reflect grounds recommended both by the Law Reform Commission in their report on the matter and by the joint Oireachtas committee although they do not represent all the recommendations contained in these reports. The Government are satisfied that the reformed law on judicial separation will fully meet the needs of people who wish to seek a decree of judicial separation.

There are two other areas of family law in which the Government have also decided to make changes. One is the law of marriage. As a step towards the protection of marriage and towards ensuring that young people will not enter into hasty marriages — marriages by very young people appear to be specially vulnerable — the Government will propose that the minimum age at which a person may validly contract a marriage will be 18 years, with power to the family court to authorise in exceptional cases and after having heard the parents, an earlier marriage between the ages of 16 and 18. The legislation will also provide a minimum period of notice of three months before a marriage can be contracted unless the family court is satisfied that there are substantial reasons for abridging that period.

The law of nullity will also be reviewed. The Law Reform Commission have furnished a very comprehensive report on this subject and the joint committee have also made detailed recommendations. These will provide a very useful contribution to the review of this very complicated subject.

I hope I have said enough to convince the House of the moderate and reasonable nature of the Government's proposals. I would stress again that the Government are not proposing free for all, unrestricted divorce. Very stringent conditions will have to be met which will ensure that, before a divorce is granted, the marriage has clearly failed beyond redemption and that the dependants have been properly provided for. In an ideal world we would not, perhaps, need to concern ourselves with divorce but in the real world in which we live we cannot avoid the fact that many marriages fail or the fact that, while much can be done to protect and support marriage, there will remain a number, and in the modern society in which we live an increasing number, of cases where the only answer on any view of the matter is divorce.

To conclude, I will repeat something I said earlier, that the provisions we make, restrictive as they are, will allow or open up a possibility of a new form of resolution to people who find themselves, unfortunately, in very considerable distress. To speak very personally, I would not regard it in any way as a threat to my marriage to feel that our Constitution and our legislation provided a reasonable means of resolution for people who find themselves in that situation. On the contrary, I would find myself if anything strengthened as a legislator and comforted as a member of a community if I felt we had enough compassion to allow that to be brought about. Whatever my own religious beliefs or inclinations as to how I conduct myself, I do not feel I have the right to say to anybody else in our society that I deny that person a solution which can be given, without doing violence to anybody else, to the problems he or she experiences. In that spirit I hope we will debate this issue. I commend the Bill to the House.

The question we are considering here today is one of the most fundamental and far reaching issues to be put before the people since the foundation of this State. Essentially, and the Minister referred to this in his opening statement, this is a social issue affecting the fundamental unit group of our society, the family. Although pressures are increasing on the family and even on the institution of marriage, few Irish men and women would support the destruction of family life as we know it. Consequently, when faced with problems of marriage breakdown our first recourse is to defend the family and protect it from attack. Nevertheless, we recognise that there are serious problems of breakdown and separation in which the partners are irreconcilable. On both compassionate and practical grounds we want to provide remedies for them which are consistent with our basic support for the family.

The Government have decided that divorce is necessary so as to provide for remarriage and as a remedy for marriage breakdown. So convinced are they of the value to our society of divorce that they plan to campaign in a vigorous and political way for the removal of the present ban on the dissolution of a marriage and the installation in its place of a positive constitutional provision for divorce. The Government see the provision of divorce as the greatest social need of our time and consequently, they have committed all their energies and political resources to a national campaign for divorce.

The position of Fianna Fáil is quite different. We are not opposed to the holding of a referendum on the issue of divorce and we will not oppose the Second Reading of the Bill, but we regard this as an issue which should be decided by the people in the full light and knowledge of all the social and legal implications involved. Therefore, our objective will be to ensure that the pros and cons of the Government's proposals are fully aired and clarified in the course of this debate. Individual members of our party may hold different views on such a controversial matter, but all are agreed that the issue should be put before the people. This debate is the first major opportunity to have a detailed and critical analysis of the Government's proposed wording for the referendum and of its likely effect on Irish society and family life should it be passed and included in the Constitution.

The Oireachtas Joint Committee on Marriage Breakdown considered in detail the protection of marriage and of family life and put forward the measures needed to deal with the problems arising from breakdown. The committee were hampered by the lack of basic factual information on the causes and extent of marital breakdown in Ireland today. However, the attention of the committee was drawn in submissions to the large number of marriages where abuse of alcohol was seen as a major factor in breakdown. Another outstanding contributor to breakdown is the age of the couple at the time of marriage. Research has shown that in every major study in the past 30 years and in all official statistics, the age at marriage is associated with success, with a critical cut off point at about 18 or 19 years. Marriages below that age run a considerably higher risk of breaking down. The personal characteristics of the partners are important in achieving a stable marriage relationship, but the committee found also that large scale unemployment, poor housing or inadequate financial resources can place marriages under strain and exacerbate problems which may exist already in a marriage and bring it to the point of breakdown.

Members involved in the preparation of the joint committee's report became acutely aware of the lack of comprehensive statistics on marriage breakdown in Ireland. The submissions received were critical of the unavailability of such statistics and questioned the accuracy of those which were available. The committee stressed the need for the 1986 census to include precise questions on the extent of marriage breakdown. This has now been done and it is expected that accurate information on the extent of breakdown will be available later this year. It is at least highly questionable that the referendum is being held so shortly before this accurate information on the extent of the problem is made public and fully analysed.

Meanwhile, the Labour Force Survey, 1983 is the principal official statistic available for this referendum debate. Based on some 40,000 households, it covered approximately 4 per cent of the population and is, of course, subject to sampling errors. The survey estimates showed that there were 2.45 million people in the State aged 15 or over. Of these there were 952,000 single and 1.3 million married persons, and 179,000 widowed. All forms of breakdown amounted to 21,100 persons who were separated. These included deserted spouses, annulled marriages, and divorced or separated persons. On this basis the percentage of the population aged over 15 recorded as separated or deserted was 0.9 per cent, and as a percentage of those married 1.4 per cent.

The indications are that the figures have increased further since 1983 but this will not be fully known until the date from the recent census are published. What proportion of the 21,000 persons "married but separated" would seek to remarry if divorce is introduced is a matter of conjecture. We know that 1,500 of these had already obtained divorces and 500 had received annulments. On this basis it seems likely that at least several thousand of these "separated" persons would seek to avail of either an expanded and updated legislation on civil nullity, or a divorce jurisdiction so that they could remarry with the full authority and backing of the law.

What are the remedies? The trauma of marriage breakdown and most of the problems associated with it can be resolved without any amendment to include divorce in the Constitution. The following measures could be taken immediately by the Government or where appropriate by the Oireachtas.

The first approach to marriage breakdown must be to undertake a more detailed study of the causes and to suggest suitable remedies. However, it is clear that some measures could be taken without delay. These include legislation to raise the minimum age for marriage to 18 and the use of the basic educational system to prepare young people and give them an understanding of marriage. Resources should be committed to ensure that there would be an easily accessible and effective guidance and counselling service available to married persons and couples preparing for marriage. These measures will cost money but the cost of prevention is small by comparison with the present day cost of broken marriages.

Where marriage breakdown or signs of failure occur there is a need for:

1. A reconciliation service aimed at restoring the marriage through specialist counselling and guidance.

2. A mediation service aimed at assisting couples whose marriages have irreconcilably broken down, to resolve the problems and disputes which inevitably arise, by consent rather than by conflict, for example in claims for custody and access to children.

3. A family court jurisdiction to adjudicate on disputes in a more informal legal environment and to note mediation settlements.

4. The updating and clarification of the law on civil nullity and the reform of the procedures involved.

5. The updating of the law and arrangements for other legal remedies such as separation agreements and judicial separations.

Those whose marriages have broken down may avail of any of these legal remedies and do so at present. The improvement of these remedies is a matter for the Government and the Legislature. It does not need a constitutional change. They are effective and comprehensive measures for assisting and regularising, and giving legal force to, arrangements made between the partners to a marriage which has broken down to the extent that the spouses decide to part. They cover such matters as maintenance, custody of children, the position concerning property and the family home. All these measures can be taken without a referendum. Indeed, they should already have been taken which would put the need for divorce and remarriage in perspective.

There are spouses who simply agree to live apart and who want to have their separation agreement formally recorded, usually by a deed so that in the event of a later dispute it can be enforced by the courts. A separation agreement has the advantage that it is inexpensive and can readily be revoked if the parties decide to resume their marital relationship. It does not affect the validity of the marriage. If arranged following suitable counselling, and possibly mediation, it can in a humane way fully provide for the breakdown of a marriage. What is missing here is an adequate counselling, mediation and family court jurisdiction to support such arrangements between spouses. The constitutional amendment will not help these cases in any way unless they later wish to remarry.

The present law on the granting of judicial separations is fault-based. The "faults" specified include adultery, physical or mental cruelty, or unnatural practices. The Law Reform Commission recommended in 1983 that the grounds on which judicial separations may be granted should be extended to include desertion, breakdown of marriage or separation for a set period of time.

They also recommended that husbands as well as wives should be allowed to apply for alimony and that each spouse should be precluded from taking any share in the other spouse's estate on the death of the other spouse. The Oireachtas joint committee in their report over a year ago gave as their opinion the proposal that a decree of judicial separation should be granted if the court is satisfied that the marriage has irretrievable broken down. They considered that there should be one overall ground for granting the decree and that should be irretrievable breakdown. This would be accepted if an applicant proves one of a number of specified grounds. These recommendations were aimed at updating the law on judicial separation and at ensuring that the arrangements for a couple who separate, and for their children, would be as helpful, supportive and compassionate as they possibly can be.

Once a couple separate they are immediately faced with a whole series of practical problems especially where there are children involved. These problems are a consequence of the breakdown and, no matter how compassionate or concerned we may be, there is a limit to the extent to which society can help. This applies whether one of the parties wishes to remarry or not. Many of those who are separated, especially wives and children, find themselves thrown onto the State for social assistance and deserted wife's allowances. Most TDs are very familiar with the situation where the husband, having complied with all the formalities of a legal separation, defaults in the subsequent payment of maintenance. As a result the taxpayer has to foot the bill.

Surely it is time that a more serious view was taken of this abdication of responsibility by deserting spouses? There is of course the underlying problem that few men, or in some instances women, can afford to support two homes or two families. Nevertheless, with the tax bill for deserted wives and their families at a record £33 million it is time a new look was taken at the question of responsibility. In particular it is time that the Oireachtas considered giving power to the State to recover moneys owed by maintenance defaulters where the taxpayer has had to meet the bill. The Minister in his suggestions is proposing that extra powers be given in subsequent legislation in relation to property.

The taxpayer is making the payments already but does not have the power to recover any or all of the outlay. The deserted wife and family have the right to pursue maintenance or attachment-of-earnings orders through the courts, but they rarely have the time or financial resources to do so. Deserters and defaulters may also attempt to defeat court orders by moving to another jurisdiction. Such an evasion route could be stopped by the State pursuing the defaulter.

This would require the implementation as soon as practicable of the EC Convention on Jurisdiction and Enforcement of Judgments in Civil and Commercial matters signed by Ireland in 1978. This convention covers proceedings for maintenance and the pursuit of a debtor. It would require enabling legislation here to bring it into operation. This should be proceeded with without delay.

It is indeed strange that so little has been said concerning the civil law of nullity as it applies in Ireland. Even the limited official statistics available from the Labour Force Survey, 1983, showed that 500 respondents were described as "marriage annulled". Civil nullity is a remedy which may apply to many cases of marriage breakdown in Ireland today, but as it stands the legislation is over restrictive and out of date with developments in the courts. It is a remedy which could and should be immediately updated by the introduction of suitable legislation. It does not require a constitutional referendum to bring a satisfactory solution to those seeking civil nullity.

Today the Minister gave an undertaking that subsequent to the referendum he plans to bring in this type of legislation. However, that type of legislation is long overdue, as has been well indicated to us by the Law Reform Commission and the joint committee.

The civil law of nullity derives its jurisdiction from the Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870. This Act transferred the jurisdiction, up to then exercised by the Ecclesiastical Courts of the Church of Ireland, to a civil court for Matrimonial Causes and Matters. This move followed the disestablishment of the Church of Ireland. These matters were subsequently transferred to the High Court and are dealt with there at present. Under section 13 of the Act of 1870 the new court had to rely on the principles and rules used by the Ecclesiastical Court of the Church of Ireland up to that date, 1870. Thus, while a new civil jurisdiction was introduced breaking from the Church — the Church of Ireland — it was still held by the courts that the limited grounds for nullity practised by that Church at that time still applied to Irish civil law.

This somewhat ridiculous situation continued in the Irish courts up to 1975 when the principles of law in these cases were extended. But, to our shame as a nation, there has been no legislative change in this area since 1870, or 116 years ago. The Judiciary have been left to apply outdated laws based on the concepts and social mores which applied pre-1870. There is an obvious and urgent need to update the law on civil nullity as a remedy for those cases of marriage breakdown to which it can apply.

The grounds for obtaining a civil decree of nullity which make a marriage void are:

1. Lack of capacity: This can arise from a prior subsisting marriage, a marriage within the prohibited degrees of relationship, marriages involving a lunatic and under age marriages;

2. Non-observance of formalities which are set down by Statute;

3. Absence of Consent: This can arise from mental incapacity, mistake, duress or fraud.

The grounds for obtaining a decree of nullity which render a marriage voidable, that is it can be set aside if one partner so requests, are:

1. Impotence;

2. Psychiatric illness or mental illness present at the time of marriage which renders a person unable to enter into or sustain a normal marital relationship.

In the case of nullity these grounds would have to have been present at the time when the marriage was originally entered into. Nevertheless, in cases of breakdown it is not uncommon to hear of instances in which a young wife was deserted after only a few years of marriage. In such cases there must surely be a question as to whether the husband had the psychological capacity to enter into or sustain the marriage. There are also instances in which the husband, or indeed the wife, may be found after marriage to have serious and lasting psychiatric problems. These too must surely raise questions concerning that spouse's ability to enter into and sustain a normal marital relationship.

Mr. Justice Kenny, in the Supreme Court in 1976, stated that the court should recognise that the great advances made in psychological medicine since 1870 made it necessary to frame new rules which reflect these developments. A number of subsequent High Court cases helped to develop this case law. These developments relate mainly to the requirements for full and free consent of both parties at the time of the marriage and to the psychological capacity of the parties to contract a valid marriage. They have an important bearing on the practical application of the law of civil nullity in the eighties and on the extent to which it can be applied to help in cases of marriage breakdown.

The Government should act now by introducing modern legislation for civil nullity and by simplifying the procedures involved. This could be done through the new Family Court which has the support of all political parties.

The great, and often silent, majority of Irishmen and women do not want, nor do they intend to avail of, divorce for themselves, and the Minister reflected that in his comments this morning. However, because of religion, tradition or personal conviction they do not want divorce or see it as a remedy for which they would be likely to apply. These convictions are not, as is popularly thought, confined to members of any one religion, but this silent majority would avail of an updated law of civil nullity or judicial separation which would not be in conflict with their personal convictions. They have a right to be heard. They have a right to be catered for. In the Ireland of today they are the vast majority and the Government are ignoring their needs and their personal convictions. The Government's proposals in this referendum will do nothing for them or for the problems with which they are confronted when faced with marriage breakdown and family disruption. Indeed, the Government must surely be aware of this reality and yet they have chosen to ignore it to date.

The silent majority of Irish people also know that there are within our society people who want divorce and whose breakdown would not be catered for by even an updated law on civil nullity or judicial separation. Some of them in fact might be, but others certainly would not.

It is important that we recognise that the Government's proposals contained in this Bill to amend the Constitution are not designed to cater in any way for the many problems resulting from marriage breakdown with which we are familiar. Nor are they in any way designed to protect or alleviate the problems of existing families. They are simply intended, if approved by the people, to provide a means whereby a partner to a valid and sustained marriage can be free to enter a second or subsequent marriage with the full support, recognition and backing, not merely of the law, but of the Constitution.

This then is the context in which we must examine the Coalition Government's proposals. The people will want to know how divorce can be provided to meet the desires of those who wish to remarry without undermining the many existing marriages or withdrawing the constitutional protection which we have accorded to the family. This is why we regard this proposed referendum as essentially a social matter with profound implications for the fabric of Irish society. The decisions which we, as a society, make now in this regard will deeply influence the social environment in which our children and our children's children will be reared. I agree with the Minister when he says that it is unlikely to affect him personally. There are others of us, hopefully, who could say the same. We are talking here about the likely effects on our society and an analysis of these so that the pros and cons can be put properly to the people.

It is for these reasons that we must critically and constructively examine the Government's proposals and do our utmost to ensure that the people fully appreciate and understand the issues involved, and see them in their proper context. I would hope that those who present this debate through the media will recognise this proper context, that we are talking here specifically about remarriage. The question of having compassion for those whose marriages have broken down can be catered for in so far as this House or any Legislature can cater for it without a constitutional amendment. Ultimately, the question concerns those who wish to remarry and whether provision should be made in the Constitution, in law, or in both, to meet their desires.

Those who argue in favour of divorce say that the prohibition on divorce is an injustice to those who have become involved in new relationships, or those who want to become involved. Although they may live as common law man and wife, they cannot achieve any legal recognition of their new relationship or any adequate legal definition of their new status. They point out that there is no legislation to provide protection for the parties in the second family.

The constitutional and legal rights reside with the first family. These include the right to maintenance, the right to the family home, the right to property and to succession. They also point out that the rights to social welfare benefits are attached to the first family and cannot be transferred to the second family. These rights include the contributory widow's pension and deserted wife's benefit, which at present stay with the first wife. It is, of course, open to the second wife to obtain the means-tested allowances from the Department of Social Welfare. It is argued that the parties want the commitment of a marriage and that they do not have that right at present.

Family lawyers say that the women and children in these second relationships are left in a very vulnerable position. They claim that a formal remarriage would help the parties to have a greater commitment to each other and would mean that the law would apply to them and protect them. They regard the right to remarry as a civil right which the State should provide for in law.

On the other hand, those who argue against divorce say that they fear that divorce would open up the floodgates and lead to an increase in marriage breakdown. There seems to be little doubt that divorce has become commonplace in countries where it is easily available. We learn that one in two marriages end in divorce in America, and one in three in Great Britain. Recently I was told it is now one in 2.3 in Great Britain. But others would say that this is due to a change in social behaviour rather than the availability of divorceper se.

It is also argued that the introduction of divorce would fundamentally change the nature of marriage from a permanent union between husband and wife to a temporary one and that it would undermine the family. Those who are against divorce fear that the protection at present afforded to marriage and the family under Article 41 of the Constitution would be reduced as rights are taken away from the first family. They say that those who are having difficulty in marriage will be more inclined to take the easy way out instead of working hard to preserve and revive their marital relationship. They also point out that women and children would suffer financial hardship if divorce is introduced. They point to the fact that most women and children from first families end up dependent on means-tested social welfare allowances. This appears to be borne out in practice. It is due mainly to the inability of a spouse to maintain two homes and two families.

These, then, are some of the principal pros and cons of introducing a divorce jurisdiction. They will no doubt be greatly expanded and analysed in the course of the debate. Suffice it to say for now that there are deeply held and sincere views on this question which are totally in conflict. Most commentators favour strong protection for the family as the fundamental unit of our society. The question then is how might second and further relationships be recognised in law and be given the rights they seek without damaging the family and our society as we know and enjoy them today.

In this context we must consider the Government's proposal to amend the Constitution to permit the introduction of divorce. The Government propose to amend Article 41 of the Constitution by deleting from it Article 41.3.2.º — the prohibition on divorce — and to replace it by a positive provision permitting divorce in the circumstances which are set out. The wording of the Government's amendment has some unusual features which, on careful analysis, do not accord with the claims being made by the Government for the purpose of selling their proposal.

We must examine the amendment to determine what exactly it means and what would be its legal effect.

The amendment or Part II of the Bill states:

Where, and only where, such court established under this Constitution as may be prescribed by law is satisfied that —

i. a marriage has failed,

ii. the failure has continued for a period of, or periods amounting to, at least five years,

iii. there is no reasonable possibility of reconciliation between the parties to the marriage, and

iv. any other condition prescribed by law has been compiled with,

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.

The unusual, if not extraordinary, feature of this proposal is the fact that the right to a divorce which it creates becomes available where a marriage has "failed". It is the use of the concept "failure" that makes this proposal extraordinary. Failure is obviously a very subjective criterion. One might well ask: when has a marriage "failed"? Clearly this sets a very low threshold for divorce since a great variety of circumstances could be said to constitute the "failure".

It could be the first row. It could be an isolated act of adultery, the inability to have children, inadequate sexual relations or inability to communicate adequately. The courts would take the ordinary meaning of the word "failed." The Oxford dictionary describes "failure" as being unsuccessful. Indeed, the Irish version of the amendment uses the word "theip"—"theip sé". Obviously the really significant feature of this reliance on the concept of "failure" is that it could occur long before a separation takes place. In the statement issued by the Government when the Bill was published it is claimed that the legislation to be enacted providing for divorce would provide that a period of separation of five years would be required before a marriage could be dissolved.

It is very important to bear in mind that all we are inserting in the Constitution are those words I have quoted, the section in this Bill now before the House. However good may be the Government's intentions later, however even-handed they may be, they will be constricted and affected by what is inserted in the Constitution at this time. They should be considered separately, as indeed they were put by the Government when they mentioned them in the first instance. They say quite clearly that the purpose of their statement is to describe in broad terms the type of divorce legislation which the Government would submit for the consideration of the Oireachtas if the proposal being put in the referendum is approved by the people. It is very important that the people understand clearly that what is being inserted in the Constitution is what we are debating here today, that the other paper brought out side by side with that statement has no immediate relevance. It is just a statement of what the Government would hope to do in particular circumstances if the Oireachtas agreed and so forth in the future and depending on what actually happens afterwards. What we are now doing is putting a definite provision, not into legislation but into the Constitution. A careful reading of paragraph 14 of the Government statement does not bear out their claim. The only definite commitment that can be abstracted from the text of this paragraph is to provide a minimum period of two years from the granting of a judicial separation before a dissolution of the marriage can take place.

In the text of paragraph 16 of the statement headed: "Conditions for granting Divorce Applications" the concept of failure comes to the fore again linked to adherance to the "separation procedures" outlined. Taking all of the confusing information contained in the statement together, all that one can say is that the bottom line of the Government's subsequent intentions is to provide for a minimum period of separation of two years from the granting of a judicial separation, or rule of court.

However, leaving aside altogether the vagueness of this statement of the Government's intentions, one thing is quite clear, and that is that the claim made by the Taoiseach and the Tánaiste, that any change or reduction of the alleged five year separation period, or whatever separation period they really have in mind for the legislation to be enacted would require a further referendum, is untrue. This is so because, as I have already indicated, the "failure" of a marriage and actual separation are two very different things. Therefore, legislation which provided for a period of separation, no matter how short that period was, would not be inconsistent with the Government's proposed change to the Constitution. Indeed, if no period of separation were provided for at all, the legislation would still be consistent with the Government's amendment. Any change in the legislation which the Government intend to enact, in so far as periods of separation are contained in it, would not require a further referendum.

It is quite irresponsible of the Government to pretend to the people that the safeguard of another referendum is there when they know, or should know, that no such safeguard exists.

Before leaving consideration of this aspect of the proposed amendment, it must be noted that in all other jurisdictions that have divorce the concept of irretrievable breakdown is the basis of entitlement to divorce. This is clearly an objective concept, capable of clear definition and clearly implies and is understood to include separation. By adopting the concept of "failure" the Government seem to want to put into the Constitution the most liberal divorce scheme so far devised in any modern society.

The Government may say that the proviso, that there is no reasonable possibility of reconciliation, makes the constitutional provision very restrictive. This, of course, is nonsense as every lawyer familiar with family law practice knows. All that it takes for a court to be convinced that there is no reasonable possibility of reconciliation is for one of the spouses to say that he or she is unwilling to entertain reconciliation.

At the end of their proposal the Government have included a paragraph which on the face of it purports to protect the interests of dependent spouses and children. The first thing one can observe about this provision is that in most jurisdictions with "no fault" divorce similar provisions have been enacted but have been found to be solely platitudinous in that there is no record of a divorce being refused because of the inadequacy of provision for either the dependent spouse or children. Therefore, in so far as this part of the Government's proposed amendment may be advertised as adequately protecting dependent spouses and children, it must be clearly stated to this House that no such protection exists in this amendment.

Having considered the text of the Government's amendment, we must now look at the place which it will occupy in the Constitution, if passed by the people, and its effect on the family as the fundamental unit group of society. It is proposed that this amendment will form part of Article 41 of the Constitution and that, apart from the deletion of Article 41.3.2º and the substitution for it of the proposed amendment, Article 41 will remain the same. In understanding the effect of the proposed amendment in the overall context of Article 41, it is important to be aware of the nature and purpose of Article 41 in the Constitution.

Here the Government have very specifically and very deliberately decided not just to remove the ban on divorce, although that is a clearcut definite decision. The proposal here before us is (1) to remove the ban on divorce, (2) to put into the Constitution a positive provision for divorce and (3) to put it in the way in which the Government have decided to put it in. These are the three elements in this question. It is important to look at Article 41 and indeed Article 42. These Articles are unique in the sense that they, or something similar, do not occur in the constitutions of other countries. They therefore represent a unique commitment by the people of Ireland to the family as the fundamental unit group of society and to its rights and welfare. These Articles are the fundamental basis for the various legal protections now enjoyed by the family. They have been the inspiration and directive force of most of the legislation affecting the family passed since 1937, and have been the bulwark which from time to time has been relied upon to prevent discrimination against the family as an institution.

Articles 41 and 42 protect and support the family in two directions. First, they regulate the relationship between the State and the family so as to ensure that the family enjoys fair play. This is a very real and very important protection for the family in areas such as taxation, social welfare and education. In 1980, in the case ofMurphy v. the Attorney General and Others, section 192 of the Income Tax Act was struck down by the Supreme Court because it was a breach of the pledge by the State to guard with special care the institution of marriage and to protect it against attack.

Also in 1980, the Supreme Court, in the case ofMacDonald v. Feely and Others, came to the aid of a travelling family who were about to be bulldozed off a site. The plaintiff, Mrs. MacDonald, relied on the protection of Article 41 for the family, and the court, accepting the applicability of Article 41, took the view that:

Nothing is solved merely by moving such families from place to place. By doing so, not only is the problem perpetuated, but the claims and rights of children to any kind of education, settled life and future are ignored.

In the area of education, the fundamental rights of the family guaranteed under Article 42 have been relied upon in a number of cases. Section 4 of the School Attendance Bill, 1942, was struck down by the Supreme Court on the grounds that it offended Article 42 in three respects. In the case ofCrowley v. Ireland and Others in 1980, members of the Irish National Teachers Organisation, who refused to permit children from a neighbouring parish to be enrolled, were held by the High Court to have breached the children's rights under Article 42.

Recently, in the Circuit Court in Mayo, the court acquitted a man summoned under the School Attendance Act for failing to send his child to school. His defence was that he was entitled under Article 42 to educate the child at home and that he was doing this adequately. Articles 41 and 42 are very important to the family in its relationship with the State as they ensure that the basic rights of the family cannot be set aside or supressed.

Secondly, in discharging its pledge "to guard with special care the institution of marriage on which the family is founded" the State has enacted several Acts to regulate the relationship between spouses and other members of the family, when this is necessary to secure the overall welfare of the family.

In this context we can consider the following Acts:

1. Guardianship of Infants Act, 1964.

2. Succession Act, 1965.

3. Family Law (Maintenance of Spouses and Children) Act, 1976.

4. Family Home Protection Act, 1976.

5. Family Law (Protection of Spouses and Children) Act, 1981.

The first of these Acts permits the parents to call on the courts to adjudicate on disputes between them as to the parenting of their children.

The Succession Act, 1965, gives a spouse a legal right to the estate of the other, notwithstanding the provision of any will. Where there are no children, that legal right is to half the estate and where there are children, it is to one-third of the estate. On a death intestate, the Act gives the surviving spouse two-thirds of the estate and the children one-third between them in equal shares. The Act also, in section 117, imposes on parents a moral duty to provide out of their estates for their children and the courts can change the distribution of an estate to ensure that that duty is fulfilled.

The Family Law (Maintenance of Spouses and Children) Act, 1976, gives a dependent spouse an unrestricted right to maintenance for herself and any dependent children. This right is unrestricted in the sense that its exercise does not require that there be desertion or even that a separation should have taken place. All that is required is that there has been a failure to maintain by the supporting spouse.

The Family Home Protection Act, 1976, gives either spouse the legal right to prevent the sale of the family home, in that the sale of any family home now requires the written consent of the spouse who is not the legal owner of the home. This is an extremely important right, because it gives a dependent spouse security in his or her home. The loss of this right and security on being divorced would be catastrophic.

The Family Law (Protection of Spouses and Children) Act, 1976, through the provision of barring orders and their efficient enforcement gives vulnerable spouses and children protection from marital violence. The question of family violence has been raised by those who are pressing for divorce and it is one in which they would seek to have similar protection under the law.

Articles 41, and 42, are the foundation of this whole scheme of legislation and the basis of the relationship between the family and the State. It is important, therefore, to consider the effect which any change or changes in either of these two Articles can have in this whole area of social planning and engineering.

To begin to get a clear idea of the role of the Government's proposed amendment, as part of Article 41, it is worthwhile to quote the entire Article in its proposed amended form. The following would be the amended format of Article 41, if the Government's proposal were accepted:

Article 41.1.1º: The State recognises the Family as the natural primary and fundamental unit group of society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

It is important to recognise that.

Article 41.1.2º: The State, therefore, guarantees to protect the Family in its Constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

Article 41.2.1º: In particular, the State recognises that by her life within the home, a woman gives to the State a support without which the common good cannot be achieved.

Article 41.2.2º: The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

Article 41.3.1º: 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.

The changed part of the Article is therefore:

Article 41.3.2º: Where, and only where, such court established under this Constitution as may be prescribed by law is satisfied that:

(i) a marriage has failed,

(ii) the failure has continued for a period of, or periods amounting to, at least five years,

(iii) there is no reasonable possibility of reconciliation between the parties to the marriage, and

(iv) any other condition prescribed by law has been complied with, 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 is where it goes in the context of the other Articles.

Article 41.3.3º: No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage dissolved.

That would be Article 41, as amended, if the Government's proposal is carried by the people. A careful appraisal of Article 41, as proposed to be amended, immediately invites inquiry as to the interaction of the amendment and the original portion, and its effect in particular on a family founded on a marriage that is now dissolved.

As can be seen from the Article and as has been determined by the Supreme Court in the case of the State,Nicolaou v. An Bord Uchtála 1966, the inalienable and imprescriptible rights, recognised by Article 41, attach to the family “founded on marriage” only and to no other familial type group. It is important that we recognise that the Constitution states very clearly, and by putting this section in where the Government intend it, that the imprescriptible and inalienable rights will attach to the second family. That is the intention of the amendment and that then would presumably have the full force of the other parts of Article 41. The first family will not have it, because it will not be the family founded on marriage at that stage.

If the marriage is dissolved manifestly that foundation no longer exists. What then is the constitutional status of the first or divorced family? Reason and logic compel the awful conclusion that these families are, after a dissolution of the marriage, no longer recognised by Article 41 and, therefore, outside its powerful protection. They would become constitutional orphans. The mind boggles at the possible consequences of this situation.

No longer would the first or divorced family be able to rely on either Article 41 or Article 42 to protect itself against any unjust discrimination or oppression against it by the State, such as in the area of taxation, social welfare, education and, indeed, in all other areas where the State might enact legislation concerning the relationship between the State and divorced families.

Worse still a divorced family without the protection of Article 41, would find itself hopelessly disadvantaged in the areas of succession, maintenance and security in the family home. This would be particularly so, where the breadwinner remarries and then has to support two families.

In this situation, the new or second family would be a family "founded on marriage" and, therefore, the one protected by Article 41, and enjoying the State's pledge to "guard with special care the institution of marriage... and to protect it against attack". The new family would inevitably claim constitutional priority over the first family.

In the inevitable competition between the new family and the first family for the scarce financial resources available it is certain that any legislation which supported the divorced family, however even-handed it might be between the two families, would be challenged by the new family on the basis that it failed to satisfy the State's pledge to it, to guard it with special care and protect it from attack. The logic and reason of such a challenge would be hard to resist. This seems to create a difficulty in relation to the way in which the Government have introduced the proposed amendment. Although they may intend in future to bring in a very caring, compassionate and even-handed legislation to cater for the needs of the first family, they could find that because of the way in which they have decided to place this positive provision for divorce in the Constitution it may have adverse effects which it would not be possible to overcome.

In the area of succession the wife would lose her present entitlements. The children of the first family might find their claims to the estate of a deceased divorced parent resisted by the legal wife at the date of death, on the grounds that the children of the second marriage should have priority. Thus, those legislative provisions which distribute shares on intestacy to children of the dissolved marriage could be challenged and the State compelled to enact legislation excluding the children of the first marriage from succeeding to the estate of a deceased divorced parent. Likewise, the moral duty imposed by section 117 of the Succession Act could be defeated so far as the children of the first marriage are concerned.

The effects of the proposed amendment on succession would have very serious implications for the farming community. For example, if a farmer gets divorced the wife who may have contributed substantially to the development of the farm as a farming enterprise will, in the first instance, be deprived of her home on the farm and her way of life. If the farmer dies intestate, she will have no share in the inheritance. Her children may also be excluded from inheriting even though one or more of them may have been working the farm with the father before his death.

In the area of maintenance, legislation providing maintenance for the first family could be challenged where there would not be enough to keep two families. In this area the new family could legitimately claim the lion's share, if not all, and any legislation which failed to secure sufficient for the new family would fall to a constitutional challenge.

The right of the first family to remain in the family home would be threatened. Where the remarried spouse could not afford to provide a new house for the second family it is hard to see the existing protection afforded by the Family Home Protection Act, 1976, being left with the first family. Inevitably, the sale of the original family home would be forced by the second family, and if any legislation prevented this, inevitably it would have to yield to a constitutional challenge by the second family.

These conclusions are not fanciful possibilities. They arise directly from a reasoned interpretation of the interaction between the original part of Article 41 and the Government's proposed amendment. The extraordinary and terrible result is that Article 41, which should protect the family, becomes the instrument with which the family is oppressed.

If this proposed amendment is put into the Constitution and divorce becomes common, as it has in other countries, legal reasons will be sought for terminating the financial shackles of previous marriages. This trend has clearly emerged already in Britain and the USA. In this context the Government's proposed amendment could in future be used as a sledgehammer to crush the rights of the first family, which will have lost its present constitutional protection. Could it be that the Government have unwittingly created a "constitutional Frankenstein" which may sleep for a time but then rise and stalk the land?

The Government had the option of simply removing the ban on divorce which is continued in Article 41.3.2º. Instead they chose to replace it with a very positive and forceful constitutional provision for divorce. This may well create enormous constitutional difficulties which the Government do not appear to have foreseen.

The Minister made reference to this in the course of his speech. He said that to delete the present prohibition would run the risk that any subsequent divorce legislation that might be enacted might be seen to be in conflict with other provisions of the Constitution guaranteeing the protection of the family and the marriage. I brought up that point and made a submission on it at the Oireachtas Joint Committee. As has been said publicly and in the media the simple answer was just to remove the ban on divorce and subsequently to allow the Legislature to bring in some form of legal remedy for people who wish to remarry. At that time I pointed out that there was a likelihood that the provision which would be brought in by legislation could not stand against the positive protections for the family in Article 41. The Minister is taking much the same line on it now.

Instead of doing that the Minister has chosen, perhaps somewhat hurriedly, to take out the section referring to the ban and to insert another section. There could be a great danger in that. We could run into the kinds of difficulties which I have mentioned here. This will need to be considered very carefully on Committee Stage.

The legal and welfare costs of marriage breakdown are already substantial. Deserted wives and dependants' benefits and allowances are estimated to cost £33 million this year. Civil legal aid, which is mainly expended on marital problems, amounts to £1.5 million at present. In addition, community welfare officers through supplementary family welfare payments and voluntary aid societies through income supplements, also support broken families.

The main effects of the Government's proposed amendment will be (a) to formally recognise and accept responsibility for the spouse and children of a second or subsequent marriage. Thus if a male spouse is unemployed or ill the State will accept responsibility for, and make payments in respect of, his wife and dependent children of the second marriage. Similarly, death, dental, widows and other benefits will have to be paid by the State to dependants of the second family; (b) almost inevitably the State will incur the cost of maintaining the majority of the first or divorced families. It may be necessary to introduce a new payment entitled social assistance (divorced) which would replace deserted wives' payments, since the deserted wives will no longer be wives nor technically be deserted. It would also presumably replace widows' pensions for deserted wives if they were to be considered eligible for social assistance. In reality there would be two widows but since the law will recognise the widow of the second family, the widow from the first family will lose benefit and fall onto means-tested assistance schemes for herself and her children. Widows' contributory pensions for 1986 cost £209 million.

The State is likely to incur the added cost of litigation arising from conflict between the second or subsequent families, and the members of the first family, in regard to such matters as the family home and possessions, maintenance, and the custody and education of children. Who then will pay the bulk of these costs? Under the Government's constitutional amendment the State will be forced to protect the second family's rights. The Legislature will not be able to decide otherwise. Therefore, it seems inevitable that in the majority of cases the State, that is, the taxpayer, will be left to foot the bill for both families. If in practice divorce leads to an increase in breakdown then the extra cost will be even greater.

The question to be decided is whether the particular constitutional amendment that is before the House is an appropriate amendment to put before the people. The Government are convinced that the approach which they are taking is sufficiently restrictive to permit divorce while at the same time safeguarding, as far as possible, the interests of the family unit. Following a critical analysis of the text one is forced to the conclusion that the amendment as worded does not appear to meet the Government's stated intentions. If adopted it will lead to a very liberal and unrestricted divorce jurisdiction, with damaging consequences for the stability of the family unit.

The main implications of the text are:

1—A very low threshold is to be used to decide if a marriage is no longer viable. The term "failed" is so subjective and undefined that the courts will find it impossible to avoid a liberal and unrestricted basis for divorce.

2—The use of the word "failed" will permit unilateral divorce at the request of one party only. A court will have no other option but to accept the view of one of the parties that the marriage has failed regardless of the view of the other spouse.

3—It allows for divorce on demand once the couple have been married for five years.

4—It is particularly inadequate in providing financial support and security for a divorced spouse and the children of the first family. The financial needs of, say, the wife and the children will be determined once and for all at the date of divorce. The proposed constitutional provision will not permit these needs to be reviewed over the years should circumstances change for example, due to serious long term illness or accident. Under existing legislation all provisions for maintenance of spouses and children can be reviewed by the courts as the circumstances require.

5—It gives no constitutional protection whatever to a spouse who is considered not to be dependent on the spouse seeking the divorce. For example, is a wife to be considered a non-dependent spouse because she is capable of working and, therefore, to be forced to go out and work to support the children? In any case a non-dependent spouse is excluded from consideration, and from any protection, under this Government's proposed constitutional amendment. The amendment states that very clearly and relates very directly to a dependent spouse.

6—The proposed amendment provides no protection for assets or any source of income, for example, a shop or farm, which may belong to, say, the husband, but which was built up over the years by the mutual efforts of both spouses.

7—The succession or inheritance rights of a spouse and children of the first marriage are left unprotected and are transferred to the second family.

8—Existing social welfare benefits, for example, widows' pension, deserted wife's benefit and dental benefit, are transferred to the second wife. The State would presumably assist the divorced wife and children on a means-tested social assistance basis.

9—The rights and protections which are enshrined in the Irish Constitution, and are designed to protect the family based on marriage, would be transferred to the second marriage. The divorced spouse and children of the first marriage would become "constitutional orphans".

Marriage is an institution the stability and well-being of which are essential to the stability and welfare of society as a whole. Virtually every civilisation has recognised the protection of the family as the necessary basis of social order and indispensable to the welfare of its people. Hence the introduction of divorce laws or laws providing easier access to divorce always have involved controversial debate. Such issues must be considered in the light of the system of values, the traditions and welfare of each particular society. What is good for one society is not necessarily good for another. Much depends on the values of the society concerned, its priorities as well as the nature and scale of the problems of marital breakdown experienced.

No society has seen the provision of divorce as a desirable end in itself. It has invariably been introduced as the lesser of two evils in a situation where there is a high rate of marital breakdown. No society, no national Legislature, no major political party, no professional institution concerned with social welfare has, to the best of my knowledge, ever maintained that the introduction or facilitating of divorce would have no ill effects on the status or stability of the institution of marriage. On the contrary, all societies which have introduced divorce have recognised its negative and destabilising effects on marriage and society generally, and have introduced it in spite of these factors, because it was seen to be "necessary" in their particular circumstances. In stating that a law providing for divorce will have these attendant negative consequences for society I may perhaps be stating the obvious, but I do so for good reasons.

To be placed in the balance against the negative consequences for the institution of marriage and society as a whole, which the introduction of divorce will inevitably bring, are the negative consequences which its absence may have on a proportion of our people whose marriages are irretrievably broken down and who, in turn, have or wish to start a new family with another partner.

One of the first questions which the people have to decide, therefore, is whether the nature and extent of the problem of marital breakdown is of a sufficient degree and magnitude to justify the introduction of any kind of divorce with all its attendant ill-effects on the status and stability of the institution of marriage. It is a question of judgment as to where the interest of the common good lies in this difficult and complex issue and a judgment which each individual voter must make for himself or herself when he or she has taken all the material factors into account. The Minister referred to this in his statement. He said that in the Government's considered view the balance of social good lies with the introduction of divorce in limited circumstances. I say this is a question of the interest of the common good and the social good and that is a matter that only the people can decide.

Bearing these features in mind and having regard to the social nature of the issue with its implications which are fundamental to the very order and fabric of our society, it is, as far as Fianna Fáil are concerned, not one for party political poses. It is necessary, however, that all those who participate in this debate inside or outside the House, present clearly, and I hope objectively, a complete picture of all the implications of the proposal. As the major Opposition party, it is the duty of Fianna Fáil to examine the proposal critically, in the best sense of the word, both as to the fundamental principle behind the proposed amendment, namely, the introduction of divorce and as to the nature and terms of the specific proposal having regard to the text of the Bill itself.

In this context, I wish to turn to another reason for having stated the obvious with regard to the negative effects which divorce will inevitably leave on the stability of marriage as an institution. Fine Gael have circulated a document, in substance a propaganda document, which is intended to put the official Fine Gael case in support of the introduction of divorce in this country. It is entitledFine Gael — Marriage, Separation and Divorce and bears all the hallmarks of the so-called national handlers with the smooth language and presentation one normally associates with the advertising of soap powders. It does little credit to Fine Gael and an injustice to the complexity of this issue, which is of such importance both to those who already favour divorce and those who oppose it.

Where does the Deputy stand? We are no wiser at the end of an hour.

The Deputy will have an opportunity to speak later. It is extraordinary that the Government have acted in this way. It appears they want this House to function purely as a rubber stamp. They are not sincere or honest in their consideration of the proposal before the House. The Government, through the major partner, Fine Gael, have sent out this document which sets out their position as though this debate had finished. Indeed, the Minister's mind must be closed in relation to the considerations that will be put forward in the next few days.

There is a public debate going on about this matter. The Deputy is not doing his party any favour by making that kind of nonsensical cheap remark.

Surely the Minister will listen to what will be said in this House? I ask him to contain himself and to deal constructively with the proposals put forward.

Is he telling the people outside to stop talking?

We are not here for the national handlers. This is a major historic occasion that will go into the history books. It is not a time for frivolous handouts by the national handlers. It is time for this House to consider seriously, constructively and objectively the proposal the Government have put before the House. We have undertaken to do that.

I thought for once the Deputy would get by without cheapening himself like a corner boy.

That document is cheapening the major party in Government. By their backdoor approach they show a total lack of respect for this House.

What is the Deputy's view about this matter?

The document is clearly calculated to convey, and does convey, that the divorce proposal now before the House will not affect the stability of marriage in any way. That is a false message and is misinformation that should be seen for what it is at the outset. The issue going before the people is not whether divorce, in whatever form, will have destabilising effects on the institution of marriage but whether these negative effects for society are outweighed by the need to cater for those who wish to remarry.

The message being propagated by this document goes even further. By the slick juxtaposition of the second and third of a series of contrived questions, the document manages to convey that divorce will actually stabilise society. As stated already, no credible social or political commentator can seriously advance this contention. To do so can only be calculated to mislead the people as to the issues on which they are being asked to pass judgment.

The Fine Gael document sets out to present the availability of divorce as a desirable end in itself. This distorts the issue. The real issue stems from a conflict between (a) the needs of the minority proportion of our people who have suffered or will suffer a breakdown in their marriage, and who wish to remarry, and (b) the need for society to protect the institution of marriage from being undermined and destabilised in the interests of the common good of society.

What will be the Deputy's advice to the people?

If one examines specific cases of marital breakdown and considers their plight in isolation from society as a whole, one will find cases where compassion alone would lead one to favour the introduction of divorce, having regard to the plight and human needs of the individuals concerned. The difficulties arise when one moves away from considering cases of marital breakdown, individually or collectively, and one examines the introduction of divorce in the context of society as a whole. A new divorce law will not simply affect those who have suffered marital breakdown but will apply to every citizen who enters into the marriage bond.

This is like a tract from the Knights of Columbanus.

I ask the Chair to control the Deputies on the other side. I am not going to say what is the Deputy's role or interest in this matter. He should let me speak.

Deputies should allow the speaker in possession to continue without interruption.

What the Deputy has said is disgusting and disgraceful.

There should not be any further interruptions.

Perhaps the Minister would ask the Deputies behind him to keep quiet. Up to the present time our human perception and response to the institution of marriage has been conditioned by its permanence and indissolubility in civil law. Anybody who maintains that our perception and response as a society to the marriage bond will not be altered once divorce, in whatever form, is introduced will be deluding himself or herself, or is seeking to delude others.

There is no doubt in my mind that the concept and perception of marriage and its traditional role in society will change if divorce is introduced. This is not to say that this fact alone must defeat the proposal at present before the House. What must be said, however, is that each voter should appreciate these implications when he or she comes to make his or her judgement on the issue. The implications to which I have referred will not simply affect those already in the marital state today but will continue to make an ever-increasing impact on the younger generations as they approach and undertake the marriage bond. Divorce must inevitably have similar negative effects in store for the children of those marriages.

It is this potential change in the role of marriage and the status of the family in the Irish society of the future which has to be placed in the balance on one side, with the real human needs of those whose marriages have broken down irretrievably and who wish to remarry on the other.

In recent public discussions and reports there has been a major emphasis on marriages which have broken down, to the exclusion of the positive and beneficial influence which the success of the vast majority of marriages has had in our society. The family has been the primary source of joy and happiness in the lives of the vast majority of our people in spite of any difficulties which, on account of our inherent human frailties, may be encountered from time to time.

Seeking to protect and cherish the family is not the pursuit of some arid or sectarian principle, as some would have us believe. Nor is it simply a question of clinging to outmoded conservative precepts. Rather, it is the duty of all citizens, and especially of the legislators, to promote the common good by protecting the family and the institution on which it is founded, as the natural and primary source of human satisfaction.

Further we must remember that the great majority of marriages are successful. It is against this background that we must consider the Government's proposed amendment to provide for divorce. The Government's proposal will certainly provide for divorce and for remarriage. How this specific proposal will affect the common good and family life as we now know it, is a matter for judgment. Whatever the result of this debate and of the proposed referendum, society will still have to protect the family as the necessary basis for social order and as indispensable to the welfare of the nation and the State.

The overriding goal must be to protect for the benefit of this and future generations of our society the family based on the institution of marriage. We must protect it from serious or undue injury. Whether this can be achieved in a manner consistent with divorce is something which only society itself can answer through the ballot box. We are not opposed to the holding of the referendum and we are not opposing the Second Stage of this Bill. We have examined the Government's proposals constructively and given our views in a constructive way. It may be that the Minister does not like my saying particular things but the different points in an argument should be dealt with in the open here in this House. Let people take their decision subsequently.

What side is the Deputy on?

Let people be aware of all the arguments and implications.

That is why the Bill is being debated here.

It is being debated here because the Minister had to come to this House. If he could have by-passed the House and gone to the people he would probably have done so. Let us not get into that.

You are an insulting little corner boy and you are doing yourself a disfavour by that kind of allegation.

The Minister should stop that ridiculous talk. We are trying to discuss a very serious constitutional amendment, not some petty Bill.

Discuss it. Stop making nonsensical, ridiculous allegations.

I have analysed the matter as clearly as I can and I have found that many of the statements used by the Minister have come from inputs we made to the Oireachtas joint committee. We are fully prepared to participate in constructive debate and discussion in this area. Our party have taken the particular decision that we are not opposed to the holding of the referendum and that we will not campaign politically. If the Minister's party, or a section of it, want to campaign politically, let them do so. our party have taken their own democratic decision not to oppose the holding of the referendum but to discuss and critically analyse the proposals. I have given the House my views and the Minister has an opportunity to respond when replying to Second Stage or on Committee Stage.

There are concerns about the way in which the Minister and the Government have chosen to go about this amendment. I have outlined them as clearly as I can and we will await the Minister's reply. I appeal for objective, full, frank and constructive discussion. I also hope the Minister will ensure that the people are fully informed on this issue. it is one of our major objectives to ensure that people can make a mature decision in the light of all the facts involved. We will accept their decision.

I should like to compliment Deputy Woods on the excellence of his contribution to this debate. He has outlined in minute detail most of the important factors of concern to me. He has, however, made my job a little more difficult because it would be unnecessarily repetitious if I were to use all the material I had intended. I will not take up the time of the House by so doing.

The basic issue in relation to divorce is one which is often disregarded by individualistic liberal opinion, that is, whether the sum total of human happiness in society is more likely to be served by permitting unions to be terminated and new unions to be entered into, with all the possible adverse effects, especially on children. It is very striking that the issue never seems to have been argued in terms of any empirical evidence. That is an extract from an address by Dr. Garret FitzGerald to the Law Students Debating Society of Ireland at King's Inns on Tuesday, 8 November 1977. It would appear that at that time the present Taoiseach had his finger on the pulse of reality and it is hard to understand how his opinions can have changed so much. One must ask the reason for this great rush to introduce a divorce culture into our society.

I had occasion on Monday night to be on a public platform with Deputy Barnes. In the course of the discussion she asserted, among many other things, that since we were the only remaining country in Europe which had not yet introduced divorce we more or less had an obligation to do so as soon as possible. Those were not her exact words but that seemed to be the intent of the comment made. If that is the reason this country finds itself debating this topic it is reprehensible and unfortunate. Once before in our history this island was out of step with Europe but at that time Europe was going through what history afterwards recorded as the Dark Ages. If we had not had the good sense to be different then, Europe might not be the place it is today. I hope it will not be a good enough reason for us to change our attitude to the family.

I wish to make some comment about the media and their performance to date since this issue was introduced. There has been a notable play-up of the issue of divorce in the mass media. Almost every day on television or radio there are commentators giving all the hard luck stories. It is necessary for us, because of that tendency to summon emotion-charged arguments, to remove the prejudices in our mind and think clearly about the reality of marriage and the cold facts about divorce. The proponents trump up the perpetual hard cases and that is the way divorce started in Italy, France and every other country throughout Europe.

What started off as looking for protection for the hard cases is now a tide which has swept over Europe and it appears to be unstoppable. If it were a valid argument that the hard cases deserve the kind of consideration we are told they should get and if that were all that would happen and divorce would not escalate, throughout the countries of Europe where it has been introduced only a small percentage of marriages would encounter divorce problems. That has not happened. The facts attest to the very opposite. Once the floodgates to divorce are opened it will lead to demands for more divorce and we might as well be trying to hold back the tide with our hands. The job will be impossible.

We are being presented with this demand to introduce divorce because of the findings of the Oireachtas Joint Committee on Marriage Breakdown, which was presented in March 1985 and contained the following statement:

Large-scale unemployment, poor housing and inadequate financial resources can, individually or collectively, place a marriage under strain and can exacerbate problems which may exist within that marriage already.

Financial strain is one of the major factors in marriage breakdown. It is impossible for me or any rational person to understand how the Government, armed with that information, could proceed to remove, in the last budget, the last vestige of support for the family by taking away the last £100 that was there as a tax concession to the breadwinner. Those in the 35 per cent bracket gained 2p per week per child; those in the 45 per cent bracket lost 23p per week per child and those in the 58 per cent bracket lost 42p per week per child. The Government have not recognised the need to support the family. There is something incongrous in a Government that wilfully removes the support that is there. It is worthy of note that successive Governments since 1957 have launched on a course of, year after year, whittling away the support for the family. If the tax free allowance that existed in 1957 existed today, and if it had kept pace with inflation, the father of a family would have £1,200 tax free for every child. We all know that has not happened. So how can people be so surprised when they hear that there are many marriages breaking down? The wonder of it is that any marriages can still exist, because it is almost impossible for people to survive with escalating prices and more and more being taken out of their pockets. The equal pay decision of 1974 made it a crime for an employer to give a married man extra pay to support his children. I consider that irresponsible and unconstitutional treatment has been doled out to the family and it is no wonder that they find themselves in trouble.

The cure-all for all of these ills appears to be the introduction of a divorce culture at a time when in this little impoverished nation the total revenue coming from the PAYE sector amounting to £19 million only goes part way to paying the interest on the massive national debt of £20,000 million. I suggest that it will be very difficult to get that overburdened taxpayer to put his hand still deeper into his pocket in order to support the divorce culture that will ensue if this referendum were, God forbid, to be passed. I had a question down during the week for the Taoiseach and for the Minister for Finance. I asked the Minister for Finance had he calculated the likely cost factor involved. Even at local authority level if one makes a recommendation that costs money, one must say where that money is to come from and how much it is likely to be. It is a fair question to ask in this instance. How much money will be required to support the divorce culture and where is it going to come from? We do not have to worry about where it is going to come from because there is only one source it can come from, that is, the already over-burdened taxpayer.

When I asked the Taoiseach about the effects of this legislation on women I was told that it was a hypothetical question, that it had not happened yet and therefore it could not be answered. I made a calculation of the likely cost to the taxpayer. We already know for certain that £33 million is being paid out to deserted wives and £31 million per annum to unmarried mothers. We are told that there are 70,000 people out there living in utter misery and abject despair waiting to have the opportunity to remarry. It is fair to assume that the majority of them will be rushing into the courts if the facility becomes available. Assuming that 35,000 of them are women, I estimate that it would cost about £200 million, taking into account the degree of social welfare that we are now paying to those already deserted and the kind of services that we are assured will be provided — for example, court structures and medical and legal facilities. This is a conservative estimate.

That is very interesting. In providing the services necessary for the victims, that is the women and children, of this Bill we would have to provide conciliation services, health board grants and services, social workers, home advisory personnel, extra psychiatric and psychological services, medical cards, free legal aid, half-way homes for those families in the process of breaking up, new family courts with all of their accoutrements and paraphernalia, ever-increasing social welfare for women and children and, of course, the numerous factors can never be costed — the effect on the shattered lives of the unfortunate children who will be the real victims and who in fact will have no say in what their parents do. The evidence abounding from where these cultures exist is that the children are treated savagely by the parents, perhaps not intentionally, but that is what happens to them because they love both parents and it is now agreed by many sociologists that a child is better off with parents who have the odd falling-out or disruption at home than without one of them.

What about the one whose father is beating his mother in front of him every day?

Deputy Flaherty has brought in the hoary chestnut of who is beating up whom. This does not have to happen. All of the structures of the State are there at the moment to prevent that situation and if divorce were here tomorrow it would not make a whit of difference to that situation. We are only talking here about the right to remarry.

Is the Deputy saying children are better off in that situation?

I would be obliged if you would ask Deputy Flaherty to allow me to make my contribution without interruption.

Deputy Glenn, without interruption.

I am sorry.

A factor which is emerging more and more in Great Britain and elsewhere is the risk to young girls in particular where the new father figure, a stranger, no blood relation, enters the household. An increasing number of headlines are appearing in the British newspapers of sexual abuse of young girls in their own homes. We all agree that this is horrifying but these are consequences of the divorce culture and these facts cannot be denied. The world is a sociological reservoir where evidence of this sort abounds and anyone who is not prepared to accept this is not prepared to face reality.

The effects on women especially warrants some comment, and Deputy Woods mentioned them. The Minister said the children will have succession rights but no account is taken of the woman who is discarded. The woman will be the victim of this legislation, the cast aside spouse. Evidence proves that her status in society is seriously diminished. A very small percentage of Irish women are in the workforce — I think around 12 per cent — and an even smaller percentage are professionals. The rest would be employed in shops or offices and would not have job security. It follows from this that most of the people affected by this legislation would have to fall back on the resources of the State.

As I said, these women are denied succession rights but the position as regards family home protection is self evident. If a husband leaves his wife and children, what family home are we talking about? Reason would suggest that the family home is that of the second liaison. The Constitution is to protect the family but a women case aside is not a family. She becomes a non-person. She loses all protection under the Constitution. The wife and the children are diminished. But the opposite happens to the male. He will have formed an alliance with somebody in the workforce who is bringing in plenty of money. That is all he is interested in. This is what has happened everywhere else and it will happen here. It occurs to me that any woman voting for divorce is like a turkey voting for Christmas.

The important point here is that the children of the divorced spouse are at risk. They are living with their mother and she is not part of a family. Article 42 says the duty of parents is to "provide, according to their means, for the religious and moral, intellectual, physical and social education of their children". She probably does not have the resources to do that and she is left in a very vulnerable position.

We are being asked here to delete Article 41.3.2º which says:

No law shall be enacted providing for the grant of a dissolution of marriage.

When we look at what remains of Article 41 after the deletion of that paragraph, and even including the failure process, it does not have any real meaning. It becomes a contradiction because this Article "recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law". That suggests that anything which would interfere with the family, as we are doing here, would bring that protection to nought. It takes on the connotation of an Irish joke. Here we have an Article which says we cannot pass laws which will interfere with the family and we are now doing exactly that. I firmly believe this is an Irish joke and I am sure when the legal people look at it they will agree with me.

I am not going to go into the difference between the words "failure" and "separation" because there is no connection. I reiterate that to include what is suggested here — that a marriage has failed, that the failure has continued for a period or periods amounting to at least five years and that there is no reasonable possibility of reconciliation and that any other condition prescribed by law has been complied with — is a recipe for the most liberal form of divorce ever introduced. It took England 100 years to legislate to the point from which we are starting. Can you visualise a situation in these costly courts which will be set up where a couple are confronted with a judge who is handing down a judgement on his interpretation of that section? Who can say what failure is. Can any of us? I believe that would be extremely difficult to do. I honestly believe a confidence trick is being played on our people with this suggestion. I do not give two hoots what is in the statement on Government's intentions with regard to Marriage, Separation and Divorce, 23 April, 1986, because it is of no consequence. That is another day's work and should not even be referred to here.

One thing I am certain of is that there is not one word about separation in the proposed amendment to the Constitution but it is referred to in the document and from that it appears that separation can be cumulative or retrospective. In the document it would appear that no fault divorce is what we are talking about, and that almost on demand. Great Britain has supposedly a two year embargo before a divorce is granted, and in Belgium it is three years. Those times were written into the legislation, but of course the people concerned all go to the courts and now there is no longer even any pretence that that has any validity. They can get divorce almost on demand. I have heard lately that it may be possible shortly to get divorces by post. Anybody who believes that we cannot go down that road is just not prepared to face reality.

Deputy Woods has referred to much of the matter that I had intended to speak about and I will not take up the time of the House because other people are trying to get in on this debate. I would like to comment about the proposed courts. There will be judges specially qualified to deal with marriage breakdown cases, but where are they likely to look for guidance in these cases? I suggest that they will look where they have been looking in the recent past for cases of this nature. They will look to America, the only other country governed by a constitution as we are, and it is of assistance in this matter to see what the Americans are doing. What are they doing in America at the moment? One marriage in three breaks down in divorce. Thousands of men are incarcerated in jails because they will not or cannot pay alimony. When the women go into court in pursuit of their alimony they are told in effect by the judges "Do not waste out time. You are an able-bodied woman. Go and work for yourself. He is not married to you any longer and cannot afford to keep two homes." That is the situation in a nutshell.

My task has been lightened because of Deputy Wood's contribution. Let me say that I pray that God will save Ireland, its families and its Constitution, which has stood us in good stead. To use present day parlance, there is hardly a nation out there now suffering from that culture that would not give an arm and a leg to have the protection we enjoy and which I hope we will not be foolish enough to throw away at the behest of the individualist liberals whom the Taoiseach referred to in his address to the Law Society. I am not afraid of the referendum or of putting the matter out to the people. I have grave reservations about the wording and the effect it will have and I am glad that we do not have to vote here on this because I would have great difficulty in deciding how to vote. I would need two votes, one to reject the wording and one to vote for the referendum.

The principle of subsidiary function is well known and cherished. It means that it is gravely wrong and an evil for a greater institution to take on what a lesser institution can do as well or better. What about the family in that regard? This State in wanting to interfere in the family is doing evil and a grave wrong. Anyone who doubts that should remember what happened to the local authorities when subsidiary function was cast to the wind and big brother was supposed to take up the bill. We know today that the essence of it is that not alone have we not got the money to provide roads, but we have not even got the money to paint road signs. If such effect were to fall on the families of this land it would be a poor day for all of us. On this issue I suggest that the new divide here in politics is not on party, religion, education or so on. Some of us are wise enough to want to preserve what is good and has served us. The new liberal wing want to throw it overboard and join their colleagues in the EC and every country in Europe. That is not for the common good. The Taoiseach referred to the social good. That is a doubtful aim. I am concerned about the common good and the people of this nation. Not only will I vote against the introduction of divorce when I get to the ballot box, but I will work night and day to inform and to encourage everyone I can to do the same, to go out in throngs and say "No" to this evil recommendation.

I welcome the opportunity to contribute on the divorce debate as it is a social issue related to marital problems. Let me refer to the excellent report placed before this House last December by the Oireachtas Joint Committee on Marriage Breakdown. This report highlighted an in-depth study of marital problems. In the Dáil then I made the point that I hoped that the Government would take note of the areas where this committee were unanimous, especially on the setting up of a new family court and in regard to education, counselling and the legal age for marriage, and that legislation should be introduced as soon as possible on these issues. I look forward to that legislation.

That excellent report provided much useful information. The report indicated that the majority of the committee did not regard divorce legislation as essential or desirable at this time. Definite figures for marriage breakdown are not available. Various figures have been thrown around, 36,000 to 70,000 people supposedly being affected. Such statements are misleading. Circumstances indicate that if divorce were introduced into this country it would not provide the solution to the breakdown of even one marriage.

It has been suggested that we should have divorce in limited circumstances. The usual expression used here is "no fault divorce". Where no fault divorce has been introduced, even on a limited basis, a snowball effect has ensued and divorce on demand has been the eventual result. If we decide to legislate for divorce as a result of this referendum we will leave ourselves open in many ways. We are no different as human beings from any others. Recent census figures in the UK show that a divorced woman who remarries is twice as likely to divorce as a woman marrying for the first time. One must take into account the long term impact on the children of divorced parents especially in relation to their perception of future marriage. Research seems to suggest a link between childhood experience and adult divorce. Family breakup is a factor in juvenile problems, personality disorders and so on. The very basis of any Christian community is the family. It is given a special place in the Constitution and should be protected. Therefore, we should be talking about and tackling the problems which lead to marriage breakdown and which undermine family life.

In 1984 a survey was carried out in a Dublin constituency into marriage breakdown which showed that in 67 per cent of cases alcohol was the main reason. Should we not be tackling this problem? Over indulgence in alcohol leads to many marital problems. We also have a problem in regard to teenage drinking and, after all, the teenagers of today will be the married couples of tomorrow. Even if alcohol is a major problem in marriage breakdown, divorce will not solve it. In many instances those who are divorced once will not successfully re-marry and will be divorced again. A leading marriage counsellor said that research all over the world has shown that, when people under the age of 20 years marry, there is a high risk of future marriage dissolution and divorce. That report is very important as it deals with preparation for marriage and suggests that it should be incorporated in our educational system at primary level.

It is also important that young people should learn about personal relationships, communication, affection and understanding. Perhaps, more than anything else today, young people need counselling before marriage. I appeal for support for the counselling service available at present and I should like to see it extended. I am very conscious of the problems within marriage and the many young people affected by such problems. However, divorce is not the solution. In the past few weeks there were statements from prominent legal people pointing out that there is a fundamental flaw in the proposed legislation in allowing the grounds for divorce to hinge on the question of marriage failure. A period of five years has been mentioned and I should like to refer to the point made by Deputy Woods that a very low threshold is to be used to decide if a marriage is no longer viable. The term "failed" is so subjective and undefined that the courts will find it impossible to avoid a restricted basis for divorce. What evidence can a judge accept to decide that a marriage has failed? It is not just liberal divorce which is proposed but an open door policy. There is also the question of costs but I will not go into that.

I welcome the statement today by the Catholic Bishops. We owe a lot to the Church and they have a right and a duty to speak on divorce which is quite different from dictating to the civil powers on how the Constitution should be formulated. All politicians should be devoting their energies to solving the massive problems facing the country at the moment. Divorce has been a disaster all over the world and we have only to look at England where it has been proved to have failed and is not the answer to marital problems.

What about Northern Ireland?

We should face the problem of marital breakdown, but divorce is the easy way out. People are calling for leadership and all the Government can talk about is divorce. It is time the Government got their priorities right and faced up to the real issues in the short time they have left in office.

I should like to quote from a letter in today's newspaper:

The proud heritage of our ancestors is being eroded and we are now told that unless we live in this so-called liberal society that we are backward and intolerant. This, because we want our children to know who their father, mother, brothers and sisters are — not alone to know them but to experience a sense of identity, love and security.

On a point of order, could the Deputy say from what newspaper he is quoting?

The Irish Press.

Who is the writer?

A constituent in Kerry.

Is there a name?

Could we have the name?

Do I have to supply it?

Tom Dineen, PC. Divorce is a social evil and will create more hardship instead of providing solutions. The Government's proposals are very liberal and the Catholic Bishops said they are even more liberal than they appear at first sight. I am surprised that no effort is being made to identify the problems within a marriage and to come up with solutions which would resolve them.

I accept that there are problems when a marriage has broken down, but divorce is not the solution. I have tremendous sympathy for people in broken marriages and they need all the assistance they can get. The question to be decided is whether the constitutional amendment before the House is an appropriate one to put before the people. The Government are convinced that their approach is sufficiently restrictive to permit divorce while, at the same time, safeguarding the interests of the family unit. Following a critical analysis of the text, one is forced to the conclusion that the amendment as worded does not appear to meet the Government's stated intention. If adopted, it will lead to very liberal and unrestricted divorce with damaging consequences for the stability of the family unit.

The Bill is also rather loose in regard to financial support and security for the divorced spouse and the children of the first family. The financial needs of a wife and children will be determined at the date of divorce. The proposed constitutional amendment will not permit these needs to be reviewed later on should circumstances change due to illness or other reasons. I am pleased that the people will have an opportunity by way of referendum to decide the issue before us in regard to divorce. I know the family unit is very close to the hearts of the people and that, when given the opportunity, they will reject this amendment as it is not in the best interests of the people. They will maintain the present constitutional support for marriage and family life.

In speaking on this Second Stage of the Tenth Amendment of the Constitution Bill, 1986, I have to say how pleased I am that all the consultations, discussions, and the reports of the past two years have brought this matter to a fitting conclusion — this move to give the Irish people the opportunity to express their views on the need for fundamental change, the right of citizens to divorce, and to re-marry in our own jurisdiction. This is the honourable and proper manner in which to deal with such an important social need, rather than to stand by, take no action, and condemn this and future generations to flounder on in a social and legal wilderness, when a marriage fails irretrievably.

We are going into this debate, both in the House and outside, with good source material for information and reference. We have the report of the all-party committee on marriage breakdown, the working party report on women's affairs and family law reform and numerous reports and working papers on family law from the Law Reform Commission. It is vital, I believe, that commentators should acquaint themselves with the facts and the realities and I believe that, whatever reservations people may feel about the outcome of the proposed referendum, the overwhelming evidence will show that there is a growing constituency of people for whom access to divorce law is a pressing need to allow them lives of dignity, legal protection and a chance for happiness in their second family life.

Marriage in Ireland is the same as in most other countries. People get married with hopes and ideals and a commitment to each other for life. But people here are no different in terms of human frailty from anywhere else. They often marry the wrong person or marry for the wrong reason. There is no formula for knowing in advance how well two people will relate, form a sound marital base and live lives of contentment for ever after.

At one time the Marriage Guidance Council in England analysed what seems to be the main reasons for marriage breakdown among its clients and tabled them neatly under sex problems, one-third; parental influence, one-fifth; living conditions, about 16 per cent and financial worries, 5 per cent, but the council does not do this now. It says that people are the cause of marriage breakdown. The Family Discussion Bureau of the Tavistock Institute of Human Relations which through the years has evolved its concepts from its casework practice based on psychological principles maintains —

There is seldom, if ever, a single factor which can be held responsible for the failure of a marriage, and we have no evidence at all which factor points towards chronological age, in itself a decisive ingredient of marital breakdown. This is not to imply that young people are not "at risk" in adolescence and early adulthood, but rather that the way in which these risks are met is largely dependent on the pre-existing relationships between parental couples themselves and between them and their children. When a marriage reaches a critical point, the crisis is inevitably due to a complex combination of personality interactions plus external pressures which combine in such a way as to exceed the joint emotional and physical resources of the two partners.

Crisis can come at a number of points in a marriage. It can be when the couple's own children are reaching adolescence, or later when they leave home. The English Marriage Guidance Council finds that most of its clients have been married between 15 and 25 years. There is no such thing, according to the Family Discussion Bureau, as a marriage free from conflict.

No one ever escapes the hates and resentment or the unreal demands and expectations of the earliest years of childhood. In marriage the polarities of love and hate, male and female, dominance and submission move around between the partners, often in a bewildering way. The marriage that works is the one that manages to keep them in balance, where the couple can find and keep their own separateness and remain together. When conflict and disharmony enter a marriage and remedial measures are not forthcoming, the relationship can very rapidly deteriorate, and the reality of married life can become a grim ordeal of coping with stress, resentment, anger and even awful bitterness. For everyone involved in such a family there is pain and unhappiness, but above all for the children. Whatever the trauma may be for the adults involved, they can at least have scope to escape, to share their feelings with other adults. Not so with children caught in the crossfire between warring parents. Their distress can find no ease. Many children, it is known, secretly blame themselves for their parents' anger and disagreement and are unable to cope with their fears and confusions. The net result is a pervading sense of insecurity, an inability to work at school, bedwetting, becoming either introverted or aggressive.

For such children, for whom fighting and unhappiness becomes a way of home life, deep and in many cases irreversible scars are the result. Such children find it almost impossible to learn the lesson of love, of founding a family, of forgiving or tolerance in such a home environment. How often have I been told by young adults, whose parents would have eventually separated after a long unhappy marriage, that they wished their parents had done so sooner. They said their mother or father had told them they had stayed together for the sake of the children. Those children said to their parents that they wished they had not done so because they were very unhappy. No marriage is going to break up because it is going mildly wrong. Couples only admit breakdown, and separate when there are serious difficulties in which case, while the children may have to cope with a difficult transition of living with one parent thereafter, they can, and do, settle down to a home where family life can be content, and the lessons of love learned.

I reject the notion that children suffer less in a family where there is unhappiness than they do through a separation or divorce and life with one parent or in another's family structure. It hardly needs to be said that the vast majority of Irish marriages are good, in which we find parents committed to each other and to the welfare of their children, but that fact does not give us the right to claim that the fabric of Irish family life is perfect and only at risk now in the face of divorce proposals. There is an awful lot wrong with the fabric of Irish life and too many people in this society wanted to turn a blind eye to the instability and stress in many families in the past. How many families suffer abject poverty because of a father's alcoholism? In how many Irish homes has violence become a way of life?

Our attitude to marriage laws has led to a whole sub-culture which is peculiarly Irish. We have Irish euphemisms like deserted wives, deserted husbands, battered wives, living in sin and church annulments. The position particularly of people who remarry following church annulments, who have separated and are living with someone else or who have received foreign divorces which may not be recognised in Irish law, must be sorted out. No matter which label we slap on any of these people we are indirectly identifying the same thing — marriage relationships that have broken down and need the option of a natural and legal terminal — namely divorce. All of these people have made their ownad hoc arrangements, which put them into a legal limbo land.

It should be said that divorce is about more, much more, than the opportunity to re-marry. It is about a status that reflects reality, men and women whose first marriage have ended, never to be resuscitated, and who, therefore, wish to break the ties of that first legal contract finally and irrevocably, and know that they can make a declaration that has a universal definition and understanding. It is against a background of unsustainable legal disarray that, after great consultation, research and deliberation, the Government have made a statement of intention to reform our laws which takes account of the need for action on a number of fronts but recognises the real fear many people have of too easy access to divorce. The constitutional provision ensures that this will not happen unless and until the electorate by referendum choose to bring about change.

The introduction of divorce as proposed will not be a threat to happily married couples and, indeed, will I believe even have the effect of concentrating couple's thinking when difficulties first arise, and encourge them to seek help. Our greater emphasis on marriage reconciliation, family counselling, and the expansion of the excellent schemes already in operation can only have good effect in the future. But, however good our conciliation methods are, they will not and could not eliminate the need to deal with the irretrievably broken marriage. Introducing divorce will not threaten marriage any more than the development of heart transplant techniques in surgery lead to an increase in heart disease.

I also welcome the emphasis in the Government statement on the need for protection of marriage and for the development of less adversarial and more human oriented legal institutions supported by professional counselling and conciliation to deal with marriage breakdown. The entire area is very complex and, in retrospect, it was very useful to tap the collective wisdom of the Oireachtas in determining the type of arrangements which should not be introduced.

The divorce referendum Bill, I believe, strikes a balance between the interests of society generally and the need to deal humanely and fairly with people whose marriages have broken down. I have said before on many occasions that the reality of life is that many marriages break down, and some of them break down irretrievably. We might wish that this would not be so, but we must face up to it and deal with the consequences. The non-existence of divorce in our society is itself a destabilising factor at this stage in that many people whose marriages have broken down openly live in relationships outside of marriage.

Some people will say that the terms of the referendum Bill are too broad and others will say that they are too narrow. In my view they represent a reasonable compromise against the background of the values of the society in which we live. We have, in a sense, an opportunity to come of age and to treat people as adults, capable of coming to responsible decisions about how they will regulate their domestic affairs.

Some will say that the introduction of divorce will sap the moral fibre of the nation and leave society immeasurably worse off. I am in difficulty with this argument. From my experience in other countries, in the United States and Europe, I find it difficult to conclude, nor have I seen any facts to support it, that their societies with divorce are any worse than we are without it. We have, I believe, a presumption of innocence, based on the concept of the Ireland of the saints and scholars, which is not justified and which does not result in our society being any better off than other developed societies. We are already changing, and if divorce is introduced it will merely be a reflection of those changing values in our society and not any co-ordinated plot by a minority to subvert the family and the State.

Debate adjourned.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.