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:
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 divorce per 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 of Murphy 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 of MacDonald 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 of Crowley 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 entitled Fine 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.