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Dáil Éireann debate -
Tuesday, 20 May 1986

Vol. 366 No. 8

An Bille um an Deichiú Leasú ar an mBunreacht, 1986: An Coiste. Tenth Amendment of the Constitution Bill, 1986: Committee Stage.

I understand it is agreed to postpone sections 1 and 2 until the Schedule is disposed of. Is that agreed?

Deputies

Agreed.

AN SCEIDEAL.

SCHEDULE.

Amendment No. 1 in the name of Deputy Harney. Amendment No. 2 is related. Amendments Nos. 1 and 2 may be taken together by agreement.

Tairgim leasú a 1:

I gCuid I, leathanach 5, líne 28, "go bhfuil teipthe ar phósadh," a scriosadh agus "go bhfuil an pósadh tar éis cliseadh," a chur ina ionad

agus

I gCuid II, leathanach 7, líne 15, "a marriage has failed," a scríosadh agus "that there has been a breakdown of the marriage," a chur ina ionad.

I move amendment No. 1:

In Part I, page 4, line 28, to delete "go bhfuil teipthe ar phósadh," and substitute "go bhfuil an pósadh tar éis cliseadh,"

and

In Part II, page 6, line 16, to delete "a marriage has failed," and substitute "that there has been a breakdown of the marriage,".

I do not think it satisfactory to take both amendments together. I note, Sir, that you have agreement which is obviously agreement between the Government side and the main Opposition party but we were not consulted.

The second amendment is consequential on the first amendment. It is not agreement between anybody but a time honoured way which the Chair has to seek agreement.

I do not wish to raise any great opposition to this but I think it would be better to deal with the issues separately. In the printed documentation the word "the" is repeated. I think that happened because of the translation from Irish to English. There is obviously no need to repeat the word "the" and that is why we wish to substitute "that there has been a breakdown of the marriage". The word "failure" is a very subjective description of what might have happened to a marriage. It means that a judge can decide that a particular marriage has failed. Two different couples experiencing exactly the same circumstances in their marriages can have a different interpretation as to whether it is a success or a failure.

It is a subjective concept and through this constitutional amendment we are trying to secure, for those whose marriages have broken down, the right to have them dissolved and the possibility of remarriage. To say that a marriage has broken down is a more objective and satisfactory description of what has taken place and it may well allow the courts a free hand in coming to a decision regarding a marriage where there are obvious indications that it has not been very successful and that the two people can no longer live together in a reasonable fashion. In those circumstances, the court might say the marriage has not really failed and that the couple should make an effort to solve their difficulties when the couple realise that the marriage has indeed broken down. It may have been a success once but not any longer.

In many areas we are trying to get away from the concept of failure, particularly in our educational system where we have moved from the concept of describing students who do not fulfil certain conditions as failures. That is subjective and unfair and leaves people with a stigma for a long time afterwards. In the context of marriage, it would be extremely difficult for the parties to live with the stigma of being a failure. It would also be very difficult for children who are often the real victims in many cases to have to live with the realisation that their parents' marriage has been a failure.

When these proposals were first published, the Taoiseach indicated that he would accept all reasonable amendments. Our amendment is reasonable and one which will allow greater flexibility. It is a more adequate definition of what happened to the parties in a marriage instead of a concept of failure. What is failure? Is it a marriage which has not been consummated? Is it a marriage where there have not been any children or which has not worked from the first day? I should like to hear the Minister's definition of a failed marriage. When I sat on the all party committee dealing with marriage breakdown, I realised that you cannot define a failed marriage. Marriage is a relationship between two people based on commitment and love. Everybody on that committee realised that he or she did not want to talk in terms of failure or fault, and it was the unanimous decision of the committee that the word "breakdown" was a far more adequate explanation than failure. I presume the Minister will reply to those points before we move on to the next set of amendments?

We are dealing with amendments Nos. 1 and 2 and the debate will go on for some time.

There are two things about the wording in this context which worry me. The Government's proposal is "failure". Leaving aside the quality of the word "failure", one would have expected that there might have been "total" or "complete failure". The same applies to Deputy Harney's amendment as to whether the words "total breakdown" or "irretrievable breakdown" should have been included. The Minister may well reply that the words to which I referred may not add anything, that the words "failure" or "breakdown" stand complete in themselves. In regard to a marriage breakdown, the word "irretrievable" has been invariably attached to it in this debate. In that regard, I wonder why the Minister and the Government did not use a word like "total" or "complete" to give failure a finality.

It is difficult for anyone to come to a decision regarding failure and breakdown. I do not think you can argue that failure has finality about it. Something that has failed could, presumably, be restored, repaired or rehabilitated and the same applies to breakdown. I find it difficult to decide for or against this amendment. The element of finality is not conclusive, ultimate finality, and is not inherent in either of the words. I should like the Minister to tell us what he means by "failed". In earlier times some people regarded a marriage as having failed if there were no children of the union but we do not accept that thinking any more. Different people regard marriages as having failed for different reasons, which leads one to opt for the word "breakdown".

In regard to both words, there is the difficulty that neither of them is defined. I imagine the Minister will reply to that by saying one cannot have definitions in a Constitution which merely lays down guidelines for legislation. Perhaps these things will be fully defined if there ever is legislation. It illustrates the difficulty we are in and the problem in regard to putting these words into the Constitution. I image the Government wish to meet the objections of a number of people who say: "Yes I will go along with divorce but only in very rare, limited and restricted circumstances." I presume it is that kind of thinking that the Government are endeavouring to meet by putting these words into the Constitution as distinct from removing the constitutional ban simpliciter.

However, this put the Government in the difficulty of having to use words which are open to different interpretations and not having available to them the normal parliamentary mechanism of definition. I should like the Minister to help us in this regard, to tell us what inherent difference there is between "failure" and "breakdown". Will the Minister tell us why he has not availed of a word like "total" or "complete" in his own wording to qualify "failure". In the Minister's wording the constitutional amendment speaks of period or periods amounting to five years. Does that mean the failure need not be continuous? Let us contemplate a situation where a marriage has failed for three years, followed by an interval and a further failure of two years giving a total of five years of failure, does that not mean that failure itself is not conclusive? If we are to have two continuing periods it will mean that the failure was remedied for an in between period. I have outlined some of the difficulties that present themselves to those of us on this side of the House in regard to these words and I should like to hear clearly from the Minister his view or interpretation before we decide whether "breakdown" or "failure" is the more appropriate word to use.

There is not a lot more that can be said on this issue and I am inclined to go along with the amendment. The worst possible result of the proposed referendum would be if a constitutional change was passed and approved but found later to be totally inoperable or inadequate or the legislation that followed it was found to be unconstitutional. We must face up to that major problem when considering words such as "failure". That word could prove to be a gold mine for lawyers because there would be legal opinions and judgments of what "failure" means. As Deputy Harney pointed out, there are many interpretations of the word "failure". It may be easy to prove a "failure" and, in other cases, almost impossible although to the people involved the marriage may be a failure. It is a personal decision when something has failed.

At an examination it is different: either one gets the marks or one does not but life is different. What some people may think of as a failure in life, to the person concerned it may be a great success. It depends on what the individual is looking at and the position in regard to marriage is the same. Failure is something very personal. I do not know if the word "breakdown" is better but it sounds better. I do not know what the legal interpretation is but it is important that the Minister gets this right because it is on that phrase that subsequent legislative decision will be decided.

This argument proves that had we been sufficiently mature and grown up, the simple and obvious thing to do would be to delete Article 41.3.2º in the Constitution and then proceed to the legislation we find acceptable on the divorce issue. However, we have the problem of putting in something instead of Article 41.3.2º. It will be on the basis of what we put in that judgments will be made in regard to the future legislation. We can be sure that constitutional cases will be taken on different interpretations of the phraseology in the amendment being put to the people. For that reason the amendment must be very simple and clear. It will have to be sufficiently cut and dried to ensure that we do not have wide interpretations of the phrase. In my view the word "breakdown" would be an improvement on the word "failure".

I agree with what has been said about the subjectivity of the word "breakdown". It is still a subjective word and appears to offer little protection for the existing marriage. One must ask: when does the breakdown begin? Does it have to be total or partial breakdown? We must also consider the concept of irretrievable breakdown, the phrase used in most legislation throughout the world where divorce is permitted. I was somewhat surprised that the word "breakdown" was placed on its own in the amendment because it seems to leave the word subjective. The word is being placed in the amendment as a possible replacement for the concept of failure which also seems to be a subjective concept.

Is it not obvious that a marriage could be said to have failed long before separation takes place? That is the kernal of the debate about the words chosen and the way they are placed in the amendment to be put to the people. Could the marriage not be said to have failed long before separation takes place? What is the meaning of the word "failure"? Presumably, the courts will look at the normal meaning of the word and in doing that I am sure they will take into consideration the meaning in the Oxford Dictionary for instance. That dictionary describes "failure" as unsuccessful or a want of success. That indicates that it is a very subjective test. For example, can one say on a scale of 1:10 what will fail, what will be successful and where failure begins? Will that test be applied? It will be for the courts to decide on the application of the term "failure". I do not really see the use of the word "breakdown" on its own as improving the phraseology because it will offer little protection for the existing marriage. As far as the use of the word "breakdown" is concerned there can be the breakdown of a car which is a very common occurrence and which, after a little attention, can be got going again. The lack of finality in that word seems to present some difficulty.

I would like to hear what the Minister has to say in relation to the subjectivity of the words "breakdown" and "failure" and also in relation to the five year separation period or periods amounting to five years. We know that stipulation is included in the Government's stated intentions, but is it not a fact that the failure could occur long before separation takes place. What relationship does the Minister see between those two?

There is an air of unreality about this debate. I agree with Deputy Haughey. I do not think there is a big difference between "breakdown" and "failure". I did not understand the point made by Deputy Woods about a car breaking down or failing. I have practised for many years and have dealt with many cars that did not survive their guarantee period. I could not envisage manufacturers complaining that a failure to start a car some day was different from a car breaking down some day.

As Deputy Haughey pointed out, we must bear in mind that this is a description we propose to insert in the Constitution which will serve to indicate to this House the parameters within which we can operate. The only question is whether one identifies some absolute test in the Constitution. That would be a very dangerous thing to do. I think it was Deputy Haughey who suggested that one might add the word "total" or "complete". If one were to do that it would be impossible for this House to pass legislation other than a form of legislation that would never permit of any sort of divorce because the test itself would be too absolute.

To take the point raised by Deputy Haughey again as to the question of a period or periods, that can be pushed too far as well. If one limits this test to one period of five years, as opposed to periods making up a total of five years, then — far from creating a law that would help stabilise marriage — what one would do, at least in some cases, would be to exclude the possibility of reconciliation. Any spouses of a marriage going through a difficult patch will realise that this has been going on for three years, realise that one has to be in a failed or broken down marriage for a single period of five years before one can get a divorce. Then there is absolutely nothing to encourage the spouses to that marriage to endeavour to overcome their differences. They will realise that if they do so the difficulties they have had will never be available to them to use in a court as part of the evidence that would show their marriage had failed for a period or periods of five years. It would be counter-productive to what we are trying to achieve. Therefore, I do not think it really matters whether we use the word "breakdown" or "failure". I would not agree at all, for the reasons I have given, that one should add to either word another such as "total" or "complete" because then the test would become too severe.

This debate will be very important if the people, in their wisdom, accept the amendment and the House has got to consider legislation in the future because it will be at that stage that the detail of the guidelines we are setting out here will have to be determined.

I agree with Deputy Haughey and Deputy Molony that it is really a question of semantics in relation to the meaning of the words "breakdown" and "failure". It was interesting that my friend and colleague, Deputy Woods, gave the Oxford definition of the words "fail", "failure" or "failed". I referred to another dictionary, the Chambers English Dictionary, which gives a different definition of the word "fail" or "failure". The enlarged edition of that dictionary, with supplement, defines the word "fail" as follows: to fall short or to be wanting; to fall away; to decay; to die; to prove deficient under trial, examination, pressure; to miss; to be disappointed or baffled; to be unable to pay one's debts; to be wanting to; not to be sufficient for; to leave undone, omit; to disappoint or desert anyone.

Deputy Haughey made the observation that perhaps the Minister was going for a total abandonment of the reference to the dissolution of marriage in the Constitution, the constitutional bar, that he wanted to abolish it entirely, make no reference to it whatsoever, that effectively what we are dealing with here is a compromise in the context of the nation, and we should not be making any apologies for so doing. I would have gone for a complete omission of the reference to divorce in the Constitution but that could not be got and, in those circumstances, I understand the Minister's difficulty.

The same dictionary defines the word "breakdown" as follows: to break down, to crush down or level; to collapse; to fail completely. In the definition of the word "breakdown" there is the intrusion of the word "fail", adding to our confusion. I do not want to compound our confusion. As Deputy Molony pointed out, what we are endeavouring to do, in difficult circumstances, is to help people by the use of a definition that is comprehensible and understandable. Bearing in mind the right of Deputies of our party to express their own points of view, I believe that the wording is satisfactory; I do not think it is complete but it is satisfactory. In the context of the sentence, or of the amendment in its entirety, it is proper that we should tease the matter out and seek clarification. We are entitled and shall continue to do so. As far as perfection is sought, the amendment, as it stands, is as perfect as we in our fallibility can achieve.

I might add briefly to the comments of the last two speakers. There is a great artificiality in debating this issue, in picking out one word, as is being done — I know it is being done in the context of the amendment proposed — the word "fail" and then have a lengthy debate as to its meaning, whether it is subjective, objective, whether or not this is the kernel of the proposition to be included in the Constitution. I take the view that whether one is talking about "breakdown" or "failure" in isolation does not matter in real terms semantically. We are talking about a marriage that has collapsed, is not functioning, is not viable. There are all sorts of different terminologies one can use. One has to assume that the courts would interpret the Constitution using a degree of common sense, interpreting words in the way in which they are meant and intended within the constitutional provision prescribed.

Within this provision we are not simply talking about granting a decree of divorce when a marriage has failed. We are talking about a court established under the Constitution being permitted by way of legislation to grant a decree of divorce if the failure has continued for a period of or periods amounting to at least five years and if there is no reasonable possibility of reconciliation between the parties to the marriage. No reference to the latter portion has been made in any of the contributions in the House. We are talking about a marriage which has failed and where there is no reasonable possibility of reconciliation. There is no ambiguity about that. It is clear that none of these provisions is exclusive, listed in paragraphs (i) to (iv) in the new provisions proposed to be included in the Constitution. We are speaking about a marriage which has failed for a specified period or periods of time and where there is no reasonable possibility of reconciliation. Whether there is or is not a reasonable possibility of reconciliation is a decision which the court will make. The mere fact of five years' failure of the marriage will not of itself necessitate the court making a decision to grant a divorce. It is a condition or prerequisite which must be met.

We are not simply talking about taking the word "failure" or "breakdown" in a vacuum and defining their meaning. We are talking about a marriage that has failed and in respect of which there is no reasonable possibility of reconciliation between the spouses. It does not take a legal eagle or an expert lawyer to work out the meaning of that phraseology. The ordinary man or woman in the street without a great deal of legal training would not have too much difficulty in recognising such a marriage. It would not need a university law degree to know what that concept meant in real terms in applying it to the situation of a broken marriage. There is a certain degree of artificiality about taking out the word

"failed" and looking at it in isolation, not taking it in the context of the provision which requires the court to ensure that there is no reasonable possibility of reconciliation.

Let me briefly refer to another matter. Deputies Andrews and Mac Giolla referred to the fact that there is a provision proposed to be inserted in the Constitution to admit divorce in certain prescribed circumstances. Both Deputies would have had a preference for simply deleting Article 41.3.2º as it currently stands. Deputy Woods on Second Stage last week queried our dealing with this matter in that way. As a member of the all-party Oireachtas Joint Committee on Marriage Breakdown, I can say that this issue was discussed in great detail by the committee and the unanimous conclusion was that one could not simply remove the prohibition on divorce. If one did that it would leave a constitutional ambiguity. There would then be nothing within the Constitution confirming that the relevant legislation could be enacted. In the light of the other provisions that would remain in Articles 41 and 42, there could be uncertainty as to what type of law could be enacted following the deletion of that Article. That is expressly referred to in the report of the marital committee, on advice given by that committee. It would seem, within the context of our Constitution and the other provisions remaining in it, that it was important that through a referendum by the people voting, the Oireachtas, could have conferred on them a specific power to provide this type of legislation. In a country where people have genuine anxieties and are eager to ensure that where marriages run into difficulties the maximum possible steps are taken to resolve those difficulties and where people are anxious that nobody can rush into a divorce court, it is important that these protections be there and available. To have dealt with this matter in a different way would not have met real worries that many have who also wish to be compassionate and to extend to couples whose marriages have totally collapsed the possibility of obtaining a divorce and of a happy second marriage.

I have expressed my views on Second Stage, as all the Deputies of my party have a right to express their views. In that context I would refer to the matter under discussion. Deputy Molony stated that there was an air of unreality about the discussion. He is correct, but perhaps for a different reason. Whatever word is used, "breakdown" or "failure", if the amendment is passed we will have divorce and if the trend in other countries is followed — and I have no reason to think that it will not — we will end up with divorce on demand.

The Government have stated that they propose to introduce legislation, if the amendment is passed, which will insist on a five year separation before a person can apply for a divorce. In circumstances where a couple have been separated for five years and come before the court, or one of the partners does, saying that his or her marriage has failed, as Deputy Woods has said, this is a subjective matter. The court cannot decide other than with the applicant. As happened in any other country where legislation included quite a volume of protections, the end result was that the marriage was accepted as having failed and divorce was granted on that basis. After some time, the limit of five years' separation will be reduced and reduced further in the Dáil and Seanad and we will have divorce on demand, as is the case in Britain and the United States.

I want, first, to assure Deputy Harney that I share her concern but do not agree with the method that she is putting forward. I disagree with Deputy Molony on only one point, which is that I believe there is a difference between failure and breakdown. Other than that, I would make my own the comments of both Deputy Molony and Deputy Shatter.

I wish to deal with some matters which go a little further than the specific words about which we are talking. If the Leas-Cheann Comhairle will allow me a little leeway, it might be helpful. I want, first, to recall the procedure for which we would provide in legislation. It has been said in the House, particularly by Deputy Woods, that in relation to the amendment we have a specific proposal but that in relation to the legislation to follow it we have a statement of intent. That is perfectly true and that is how it must be. Unless and until the constitutional amendment is passed the House cannot, under the present Constitution, enact any other legislation. We must necessarily at this point have a specific proposal for the amendment of the Constitution and a statement of intention in relation to the legislation.

We provide in the legislation that before making an application for a divorce a couple must first, in the normal case apart from the transitional provision that I think people agree on, have already obtained a judicial separation or drawn up for themselves a separation agreement that has been made a rule of court. The House already knows, as I have already pointed out, that we intend to extend the grounds on which judicial separations may be granted. One of the extensions would be that a judicial separation could be granted in the event of separation for three years of the spouses or, with the consent of the respondent, separation for one year. However, the couple would already have had to go through that procedure.

We will also provide that in no case may a couple seek a decree of divorce less than two years after securing a judicial separation or having a separation agreement made a rule of court. That background is important because it impinges upon some of the points Deputies have made on the period or periods amounting to at least five years. I will come back to that in a few moments but it is important to bear in mind that the legislation will be framed in the context of the parameters as set out in the amendment.

The use of the word "failure" has no connotation of fault and I want to reassure Deputy Harney on that point. That will be clear to the House from the quotations which have been given from Oxford and Chambers. Nowhere in any of those definitions did I hear a suggestion of fault. It is certainly not the intention of this amendment to indicate that there is a suggestion of fault in the definition of "failure". Deputy Haughey correctly anticipated my reply when he asked whether in relation to either the word "failure" or "breakdown" we would not insert the adjective "total" or "complete". I would take the view that in this context any adjective would be redundant. There is a failure or there is not, particularly, since the proposed constitutional provision would provide where and only where the court is satisfied that the marriage has failed. In that context it seems that the word "total" or "complete" would be redundant.

When we come to the second next condition as set out in the proposal, where, and only where, the court is satisfied that there is no reasonable possibility of reconciliation between the parties to the marriage that describes the condition far more accurately and effectively than any adjective such as "total" or "complete" breakdown of the marriage.

Deputy Harney is worried about what she believes to be the subjective nature of the concept of failure, as against which in logic she must oppose what she must claim is the objective concept of breakdown. I cannot see that either one in itself is either more subjective or more objective than the other. The essential point I want to make is that we are not concerned in this provision with the subjective feelings of the parties to the marriage. Once again, might I emphasise the fact that, under the legislation we propose, they will have to have gone through a process of judicial separation or will have had to draw up a separation agreement which is made a rule of court. They will already have formed the view and given effect to the view that at the very least there is something seriously wrong with their marriage to the point where they would request a judicial separation or agree to separate.

When the court comes to consider it, we will have in any case already on the record not just evidence but a very clear statement of the fact that these two people felt something had gone seriously awry. But that is not the only element in this that takes this out of the realm of the subjective. Again, I refer to the provision that the court must be satisfied that the marriage has failed. Therefore, we are not talking about the subjective opinion of either one or both of the parties to the marriage. We are talking about what the court may conclude on the basis of all of the evidence brought before it. We are not talking about a purely subjective test. We are talking about a conclusion which will be arrived at by the court on the basis of the presentation of the evidence. That objective element is reinforced by the fact that we require that the failure must have continued for a period or periods amounting to at least five years, another test outside of the subjective feelings of the parties to the marriage.

The court must also be satisfied that there is no reasonable possibility of reconciliation. Here, I go back again to what we have stated is our intention to provide in the legislation. The House will remember that, in that statement of intention in relation to the legislation, we have set out the proposition that, in considering applications for judicial separations, we will insert a provision to the effect that the court may adjourn the proceedings with a recommendation to the parties involved to go to one of the agencies that offer assistance in trying to bring about a reconciliation to see whether a reconciliation could be brought about.

I cannot imagine that there will be any mandatory force in that but it is something that the court will have to consider at the point where a request is made for a judicial separation, not at the point of the request for divorce. Of course, if it proved that a reconciliation was not possible at that point or if it emerged that during the course of divorce proceedings that an attempt at reconciliation had not been successful, that is another part of the picture which the court would take into consideration in making its decision on whether or not to grant a divorce.

With regard to failure I would remind the House of what the Taoiseach said on Friday last in this House without being able to quote the passage in the Official Report? I do not think it is printed yet. He said:

First the Court must be satisfied that the marriage has failed: not broken down — for what has broken down may be mended — but failed. We chose this word deliberately and with care, because it involves a sense of finality which no other word seems adequately to express. It is, for instance, much more final than "breakdown", and also much more final than "separation"— for not all separations involve a failure of the marriage, and under this constitutional provision the Court will have to be satisfied not merely that the proposed legal provision of five years' separation is met but that in addition the constitutional requirement of failure of the marriage for five years without any reasonable prospect of reconciliation is also met.

Moreover this sense of finality is reinforced by the provision that the Court must be satisfied that there is no reasonable possibility of a reconciliation of the parties to the marriage. It is difficult to conceive of a wording that would express more strongly than this the prerequisite that the marriage must be at an end in all but name before the Court can permit it to be dissolved, thus giving the parties a right to remarry.

That, in conjunction with what I have said about the other conditions and the legislation, should indicate to the House that failure in this context is a more stringent condition than breakdown. Could I also say since references have been made to the concept of irretrievable breakdown, I take the concern which Deputies show when they use the word "irretrievable".

I invite the House to consider the proposition that the concept of irretrievable is included in condition No. 3 in the proposed amendment, that is, that there is no reasonable possibility of reconciliation between the parties to the marriage. If we are talking about irretrievable breakdown, which is the test that Deputy Harney has in mind, I prefer the word "failure" to the word "breakdown" for the reasons which I have given. The concept of irretrievability is already included in the terms of the amendment as set out in this Bill.

I do not think Deputy Haughey was insisting on this point, but there are people whose marriages would have been regarded as a failure in the past if they did not have children. Some people would have regarded marriage as a failure if one of the sons did not become a priest or a doctor. That is not the concept we are talking about here and those are not the kinds of things which a court would have in mind.

I wish to refer to the question of the period or periods amounting to at least five years. Deputy Molony expressed concern about this matter and the reason we used that formulation. We do not want to put into the Constitution a condition which, once people believed their marriage was in serious trouble, that they were at the point of separation or that they felt it had failed, would in any way present an obstacle to those people thinking again and which would prevent them from deciding to try again. Deputy Haughey asked if this means that the failure need not be continuous, that failure is not conclusive. He asked what was our concept. Was it that the failure might be remedied during the in between period? I do not think it could be the latter because, while the parties in question might at a certain point come to the conclusion that they should separate, they might after some time believe that the separation was not producing the result that they hoped for. They might decide to see if they could work something out together and bring about a reconciliation. They might try that and fail and find themselves going into a further period of separation. We did not want to write this in a way that would prevent people from trying again for a reconciliation. If we provided only one period of five years, and that had to be a continuous period, it could be what would tip the balance in favour of people not trying again. If we provided only one period of five years they would then have to go back to square one if they found that the reconciliation did not prove possible.

I accept Deputy Mac Giolla's suggestion that in many ways failure depends on what people are looking for. What might be described as failure of marriage in one person's view might not constitute failure in another person's mind. I do not think that we can provide for the differing expectations of people. For example, it would not be valid to say that what constituted failure or the circumstances that gave rise to failure in one case ought or ought not to have been regarded as failure if they were replicated in another case.

A number of questions were asked about the reason we chose this route rather than simply deleting Article 41.3.2º from the Constitution. I think the House is aware of the reasons. I dealt with them on Second Stage. Deputy Andrews, Deputy Molony and Deputy Shatter dealt with some of the reasons. Simply, to delete the provision from the Constitution would have run the risk of creating an inconsistency or a contradiction in the Constitution which would not be justified. We then had to consider what provision in place of that would be adequate to deal with the problem and to provide the guidelines for the Oireachtas on the restrictive basis which we believe is required. That is where this provision came from. Were we simply to delete Article 41.3.2º there would be no guidelines for the Oireachtas. Some Members of this House would accept that and would rely on the judgment of the Oireachtas to legislate accordingly. Others, and the Government have come to this conclusion, would prefer that the Constitution should set out guidelines for this House so that we could be guided by something — and I hope this will be passed — which expresses the general sense of the people on this issue.

Deputy Woods asked could failure not take place before a separation. The answer is that it could. There is no doubt about that. As I said, in the legislation we are making very specific provisions in relation to lengths of time and the steps that must be taken before a court can even consider granting a divorce. In the legislation they are based on separation. The final decision of the court, which can intervene only after all of the conditions here have been satisfied, including any other conditions laid down in the legislation, would be on the basis of the provisions as set out here and would at the minimum require that the court be satisfied that that failure had continued for five years or for periods amounting to five years.

First of all, I wish to deal with some arguments made by Deputy Shatter, which surprised me coming from a lawyer. He spoke in terms of what the ordinary man in the street would think of these words and how he would interpret them. I suggest that that is totally irrelevant. The Constitution will be interpreted by lawyers. We have all had experiences over the years of having words in statutes analysed and parsed in the most exacting detail by the courts as to whether they conform with one word in the Constitution. When dealing with the words "failure" or "breakdown" we have to be very clear on exactly what the connotations and the inherent qualities of the word are and not what the ordinary man in the street would imagine it might mean. The second point made by Deputy Shatter was that we can take Sub-Article 2ºiii which speaks of no reasonable possibility of reconciliation to support Sub-Article 2ºi in regard to the failure of marriage. I want to suggest that that is not so because the four items in Sub-Article 2º stand separately and distinct.

I direct the attention of the House to the fact that the Article speaks of the court being satisfied. The court will have to be satisfied on each of these paragraphs separately. No lawyer in the Supreme Court or elsewhere would be able to bring paragraph iii into his aid as an interpretation of paragraph i. The court will have to be satisfied on each of these four matters, that they are each established as separate. In that context the four paragraphs will not be read together. The question the court will address itself to, first, is has this marriage failed? It will decide that separately as one matter. It will go on then to consider the other matters, such as the period, and whether there is a possibility of reconciliation and whether proper financial provision has been made.

All these will be decided on their own by the court, so it is not valid to say that the word "failure" is re-inforced by iii, the lack of any reasonable possibility of reconciliation. Therefore, we will have to look at the use of the word "failure" or "failed" as a separate matter. On that question the Minister slightly misinterpreted an argument I had made. He spoke of the Taoiseach referring to "finality", when the Taoiseach claimed that the word "failure" incorporated the highest degree of finality that could be found. It is precisely on that point that I was addressing myself when I spoke about the two or three separate periods amounting to five years. I was not arguing for a continuous period of five years as against two or three separate periods amounting to five years. I said that the very wording of this Article removes finality from the word "failure" and I submit the Taoiseach is wrong in saying that "failure" has an air, or ring, or quality of finality that is not in any other word, such as "breakdown".

The Article clearly envisages a marriage having failed for a period, then going through another period in which it has not failed and then having another period in which it is a failure. The Article clearly represents or envisages two separate periods of failure which added together make five years, but obviously there would be an interim during which the marriage would not be a failure. So the word "failure"ipso fcto is not final if we are to look at the words in paragraph (ii) which provide for a period of failure and then a period of non-failure and then another period of failure which, combined, make five years.

Therefore "failure", as "breakdown", has not this inherent quality of finality or completeness or irretrievability that we are looking for. Deputy Molony said there is an air of unreality about this. I suggest there is not an air of unreality about it. We are dealing with a very fundamental matter. I believe that a section of people — I do not know how large or how small — throughout the country have said in polls and surveys that they would accept divorce in very restricted, limited circumstances. Therefore, we must decide whether we are writing in the Constitution a set of limited restricted circumstances which would satisfy those people. I suggest to the Minister that perhaps the reason he has not gone for the Article in the Constitution simpliciter but instead is putting these words into the Constitution by way of amendment is to win over the support of that group of people or to satisfy the wishes of that group who would accept divorce provided it is in very limited restricted circumstances.

Therefore, it is important to establish for ourselves, and particularly as a guideline for that section of people, whether the words here are restrictive and limited to the extent some people suggest. My answer to Deputy Molony in that regard is that there is no unreality about it, and it is not legitimate for the Minister to defend the insertion of these provisions in the Constitution on the basis of legislation he may introduce. It is only an intention on the part of the Minister, and these words will govern the sort of legislation to be introduced. Therefore, the Minister cannot advance some sort of legislation that he has in mind to justify these words — it is the other way around, it is these words that will govern the subsequent legislation.

We have to satisfy ourselves, therefore, whether these words impose any real limitations and restrictions on the sort of legislation that will be introduced. I ask, and I still feel it is a very legitimate question, why a word like "complete", "total", "final", is not inserted before the word "failure" particularly as I think I can establish from paragraph (ii) that failure is not final. Paragraph (ii) visualises a situation in which we can have failure which will be ended, followed by another period of failure, and the two together will make five years. So "failure" is not final, and if we are to look at these terms being inserted as being restrictive or limited we must see if this "failure" is everything the Minister has purported it to be, or is there a need to put some other imprint on it, such as "total", "complete" or "final".

Deputy Molony said we could not put such a phrase as "total failure" into the Constitution because then you could never legislate to comply with it, to satisfy that constitutional prohibition. All we would have to do in those circumstances is to incorporate the wording of the Constitution into the legislation, and if the Constitution provides for total or complete failure and we subsequently want to legislate in conformity with that we will only have to use those exact words in the legislation we would bring in. So that argument of Deputy Molony does not stand up.

Without casting any doubts whatever on the Minister's intention to bring in legislation, or whether he will actually be there as Minister to bring in legislation, I reiterate that that is a relevant consideration because the whole purpose of putting these words into the Constitution is to govern the sort of legislation that the Oireachtas may one day bring in. Therefore, we must look at these words as they stand and as they will appear in our Constitution in future as the standard against which any legislation will be interpreted.

I have established that the word "failed" has no totality or finality about it as a word, no more than has the word "breakdown". I cannot understand why some addition has not been made to it that would give it that air of finality. This is not something to be dealt with lightly, as Deputy Shatter suggested. We cannot just take the meaning the ordinary man on the street attributes to the word and accept that. That is not the way Constitutions are phrased, implemented or interpreted. They are rigorously and minutely examined and dissected by lawyers and judges. "Failure" means irremediable failure or it does not; "breakdown" means irretrievable breakdown or it does not. I suggest that neither word has that air of finality that is claimed for it. It is no good using paragraph (iii) in this context because the court will look at each of the four separate matters and decide each one on its merits as to whether it meets the test.

Deputy Haughey is right when he says that courts parse and analyse the provisions of the Constitution and sections and subsections of statutes. One of the basic legal principles applied by any court in interpreting a statute is to look at the purpose and overall intent of the statute. A section in a statute or an Article in the Constitution is normally construed not in isolation but having regard to the body of legislation or the constitutional principle.

Contrary to what Deputy Haughey has said, here we are talking about a single sub-article that will be inserted in the Constitution if the latter is changed. It is a sub-Article that stands as a whole. It makes no more sense to extract the word "failed" and regard that as the most fundamental word than it does to extract the word "prescribe" or "establish" or any other word contained in it and conduct a debate on that. What the courts do in practice is to look at the sub-Article in its entirety. They will define an intent in that sub-Article by looking at the words contained in it and the way it stands in the Constitution as a whole.

It is quite clear that these preconditions that the marriage has failed for a period or periods amounting to at least five years and that there is no reasonable possibility of reconciliation are interrelated. One does not stand on its own. A court will not be able to grant a decree of divorce that a marriage has failed simpliciter, no more than it will be allowed to grant a decree of divorce if it believes that the parties are beyond reconciliation. It will have to implement each of the preconditions which are complementary to each other and none of which is mutually exclusive. They stand together, not individually.

There is always a danger in a discussion such as this that one can get lost in the jargon of the Judiciary and the law courts, but we are dealing with a legal argument about the interpretation of the Constitution. I will give a judicial quotation from the case Murray v. Ireland, in a judgment in the High Court on 2 July 1985 by Mr. Justice Declan Costello. In that case the family Articles in the Constitution were discussed in some detail and much of the discussion is not of great relevance to this issue. However, in one part of the judgment the judge looked at how we interpret the Constitution and whether one picks out sections or words in isolation and ascribes a meaning to them, disregarding the entire constitutional environment in which they are placed. In that judgment the judge referred to the fact that in construing the Constitution “the courts should bear in mind that the document is a political one as well as a legal one”. He went on to say that, in construing it, a purpose of approach to interpretation that would look at the whole text of the Constitution and identify its purpose and objective is the approach adopted by the courts. In other words, in looking at one Article in its entirety sometimes the courts will give an interpretation of that Article in the overall context of the Constitution and the other Articles contained in it.

In looking at a sub-Article in the Constitution there is no doubt that the courts will look at that and interpret it by identifying its purpose and objective. There can be no other way of approaching it. Otherwise an absurd interpretation could be produced by isolating a small proportion of the Constitution while ignoring the rest. In the case Tormey v. Ireland, in a Supreme Court judgment of May 1985, Mr. Justice Henchy referred to the need to adopt a construction of the constitutional provisions that would lead “to the smooth and harmonious operation of the Constitution”.

In interpreting this provision and what it means a court will look at the entire sub-Article and will apply an interpretation based on viewing the objective of the sub-Article in the overall constitutional context. It will view it within the context of an Article that seeks to protect the family, that goes on to ascribe rights to the family and that, in the context of this amendment, acknowledges the family is based on marriage but that marriages can fail. Where a marriage has failed, where the failure is for a continuous period or periods of five years and where there is no reasonable possibility of reconciliation, divorce is a practical possibility, provided divorce legislation is enacted.

The courts will not take out one small bit of a sub-Article of the Constitution and interpret it in isolation. The question has been asked why this does not refer to total failure. If refers to a marriage that has failed and where there is no reasonable possibility of reconciliation and where the court will make an objective decision that there is no possibility of reconciliation. In all reasonable terms that is a marriage that has ceased to function.

In that context we have to look at what this House is about. The intent of the Article is to extend the possibility of remarriage and divorce to a couple whose marriage has failed and who are irreconcilable. The fact that the marriage has been a failure for five years or more indicates clearly that not only can the couple not lead a viable marital relationship but that there is no reasonable possibility of their ever again doing so. I accept what Deputy Haughey has said, that our job here is to tease out this matter. However, there is a great artificiality simply arguing about the word "failed". This is a sub-Article that stands as a whole Article, that will be interpreted in the context of the full content of that sub-Article as well as viewing it in the overall context in which it stands. To say that each paragraph in the sub-Article stands separately and distinct, as Deputy Haughey said, is not correct. Each is complementary to the other and they are inter-related within the one Article.

They are separate criteria.

They are intertwined. They are not provisions that stand on their own. They are interrelated with an overall objective to extend the possibility of divorce in circumstances where it can be established that a marriage has failed for an extended period of time. Any other type of interpretation is unduly artificial. Deputy Haughey also asked why there should be reference to a continued period or periods amounting to five years. Deputy Molony dealt with that issue.

I would assume that we in this House would have certain objectives if the majority of the people wish to extend the possibility of divorce and remarriage to couples whose marriages have broken down. Our objective would be first to extend the possibility to couples whose marriages have broken down and we would be concerned to ensure that couples would not rush into divorce when marital difficulties occur. There is an overwhelming anxiety on the part of the majority of people to ensure that we do not have divorce on demand — that a couple who wake up one morning and have a row over something should not be able to seek a judge two weeks later, as can happen in Reno, and get a divorce. I do not think anybody can seriously suggest that divorce on demand is served up by a constitutional provision which requires proof of five years' failure and no reasonable possibility of reconciliation. Built within this provision is the possibility of extending re-marriage to a couple whose marriage has completely failed, while ensuring that there is protection against couples rushing into divorce without the possibility of reconciliation being pursued.

This provision greatly restricts and limits the availability of divorce in a manner unprecedented in all other countries in the world. In Italy, for example, a divorce can be obtained by a spouse after a seven-year separation without the consent of the other spouse, but that is not a constitutional provision. It could be changed at any time. Here we are restricting divorce constitutionally to provide limited divorce in very limited circumstances within the overall context of the wording of this Article. The five-year period is important.

As well as extending the possibility of divorce and remarriage to a couple whose marriage has failed and also providing protection against people rushing into divorce by inserting a provision into our Constitution, a third objective would be to encourage the possibility of reconciliation where that is possible and not discourage it. I presume we would all agree that when marriage collapses or runs into difficulties for a time, no constitutional barrier should exist against a possibility of reconciliation. We would share that objective whether we are for or against divorce or whether we recognise the need for divorce or do not recognise it. That is where the periods amounting to at least five years come into play. If we took the formula which Deputy Haughey is proposing that a marriage should have totally failed for a continued period of five years——

No, I am not saying that.

With respect, it is implicit.

May I make a point of explanation?

I am not arguing for a continuous five year period as being desirable or not desirable. I am not entering into that. My argument is a very simple one. The wording of the constitutional amendment envisages the five years as being made up of two or three separate periods. I am addressing my argument in relation to the word "failure". If there is failure and then an interim period when there is not failure, followed by failure for two years, the first failure is not final. I am using that only as an argument for or against the quality of finality in the word "failure". I am not arguing for five years or ten years or for continuous or broken periods.

In that context there are periods of failure and non-failure; but, no matter how long the period of failure, unless there is no possibility of reconciliation a decree of divorce will not be possible. This is the kind of finality that is being talked about. It is very important to have the possibility of separate periods of failure because without that there could be appalling cases. For example, a couple who had a viable marriage relationship could find that their marriage had collapsed and they might live apart for three or four years, during which time there would be a failure of their relationship. Then they might decide to make a final attempt at reconciliation to see if they can resolve their difficulties. They recommence living together and after about six months or a year they discover that their relationship is not functioning and that their marriage is not working but has totally collapsed. They again separate. During the period they were residing together the view may be that they were attempting to make the marriage work and the time would not start running again until they separated. At the end of a one-year period after their separation there would be a possibility of either of them seeking divorce. If this gap were not possible this couple could be in some difficulty after the four-year period of separation if they wanted to attempt a reconciliation. If they needed a continuous period of five years in order to get a divorce, there would be a constitutional disincentive to attempting a reconciliation. If things did not work out they would have to start all over again and a new period of five years would have to elapse.

I do not think anybody could suggest that this type of formula would be in the interest of marriage or would encourage couples to reconcile. It would effectively provide a constitutional barrier to reconciliation. I would submit that this is why the phrase "total failure" is not appropriate to be inserted at the commencement of this new sub-Article. The formula that is contained in it is far more appropriate and I think all sides would be agreed that it would not inhibit reconciliation if people vote in favour of divorce. That is the kernel of the formula.

There is another reason I suggest that the words "total failure" are not appropriate. If the courts were to adopt the approach that Deputy Haughey is suggesting, which I think would be an artificial means of interpreting this and for which I do not think there is precedent, it might be necessary to prove that marriage had totally failed. That could very well, as Deputy Molony suggested, exclude the possibility of any divorce or remarriage to many people locked into the tragedy of a broken marriage because, if I marry and if, for the first five years of my marriage we have a happy marital relationship and then something happens in the sixth year and our relationship is irrevocably ruptured, irretrievably collapsed, broken down, failed — use whatever word one likes — and we separate for five years and I go to court and look for a decree of divorce, it would be open to the court to say that the marriage has not totally failed, that it may have failed now, it may not be functioning now, but for five years it functioned, that this marriage was not a total failure, not a complete failure; it was a functioning viable marriage, a subsisting marriage, a marriage with a relationship operating in a normal way between a young couple, for five years. Later on it failed. But if one were to describe the marriage as a total failure and adopt this type of artificial interpretation — and I am doing so in reply to the argument Deputy Haughey is making in taking this sub-provision within this sub-article out of context — it could produce a nonsensical legal situation where the majority of people whose marriages have collapsed and who wish to use a divorce jurisdiction to extend to themselves the possibility of a second valid marriage, would be excluded from doing so.

It could be that in that situation the only couples entitled to a decree of divorce would be those whose marriages had totally failed in the sense that from day one they never functioned due to some personality defect or psychiatric illness or physiological difficulty such as the marriage not being consummated. In those circumstances we could enact a divorce law that would do nothing other than extend divorce to those couples who are entitled currently to get civil decrees of annulment. This would be a nonsensical constitutional proposition. I am not saying that I would agree with the method of interpretation that Deputy Haughey is suggesting the courts will adopt, but if they do adopt this interpretation the use of the words "total failure" would result in us inserting something in the Constitution which would not achieve the objective that is sought.

As a result of what I have heard I am not at all convinced that the amendment I am moving is not a correct approach. In fact, Deputy Shatter makes the case very well. The concept of failure implies there was never a happy viable relationship between the parties to a marriage. There are many situations where people can be perfectly happy for ten or 20 years and then the marriage can irretrievably break down. What I want to see is that in those circumstances, where there has been a breakdown, the couple can have the marriage dissolved and have the right to remarry. I accept the need to add the word "irretrievable" or "complete". I accept Deputy Haughey's point and I have no objection at all to that. But I want to get away from the concept of failure, which I think is subjective, ambiguous and very unsatisfactory. It would be very offensive and insulting to many people involved in what may have been a viable marriage for a long number of years to be told that their marriage was a failure when in fact, for a substantial period, it could have been a great success.

What we are talking about here is a breakdown in relationship between two people. We are talking about the irretrievable breakdown of a relationship between two people. If that is what we are talking about, the parties just cannot be reconciled. But I do not believe with any certainty that there can be a finality about this. When dealing with human beings and their relationships I do not think one can ever say never. There can never to a period where one can say that that has finally ended. That is why I believe that the word "possibility" later on in the Bill is unsatisfactory because it implies that something might be impossible and, in terms of two people, if it is not impossible and it is not certain that they cannot at some stage get back together again — which could well be the case particularly in the case of a very young marriage — I think the element of finality cannot always be there as much as we would like to think because we are talking about human beings and a particular kind of relationship.

Despite what Deputy Andrews and others who quoted dictionary definitions and so on have said, I still believe we are going down the wrong road by talking in terms of failure. I do not want to introduce any unnecessary difficulty or difference between parties who essentially agree on the overall approach, because it will be difficult enough to have this constitutional amendment carried without bringing into the debate a whole degree of uncertainty. But I feel so strongly about the concept of failure that I think it is unwise. I think that for children, to know that their parents marriage has been described as a failure, is not very satisfactory or helpful and it is rather upsetting for them, besides the two parties involved.

Deputy Shatter spoke continually about the irretrievable breakdown of marriage. I do not think he used the word "failure" at all. On our committee, as I said earlier, we were very keen to ensure that we did not in any way talk in terms of fault or failure; and I believe that the concept of failure implies no degree of success, no degree of a normal healthy viable relationship. I accept that perhaps if I were to add the word "irretrievable" or "complete" others may feel that that is a more satisfactory explanation which gets over the argument that a marriage can of course break down and, after a number of years, the couple can be reconciled. I do accept that. With hindsight I agree to the word "irretrievable" should have been added to my amendment and I am quite happy to do this. But I would like to get away from the concept of casting people into a situation where they have to live with a stigma on concept which I believe is most unsatisfactory. We are going down a very dangerous and unwise road.

Earlier remarks were made about the desirability of approaching the referendum in this fashion. It was suggested that it might have been more appropriate to simply delete from the Constitution the prohibition on divorce. That would have been my own preference. But again on the committee we recognised that that would cause constitutional difficulties in relation to Article 41 of the Constitution and the rights and so on given to the family. Equally, I believe the political reality is such that even with this particular approach we may still not be successful, but without it we would have had no possible reason to believe that the matter would have been carried. Already there are a number of difficulties coming in the way that I would be worried about. It is for that reason that I would ask the Minister to accept the bona fides of the approach that we are trying to adopt, to accept that we want to make the wording as satisfactory as possible. We do not want people whose marriages have irretrievably broken down to have to live with the stigma of failure, which would be a very difficult thing to have to live with. Equally, I believe that in the course of this debate it is important that parties who agree generally on the approach should, in so far as possible, be prepared to go down the road of accepting amendments like this if there is no real, serious objection. I do not believe the Minister put down any serious objection to what I had to say. Many Deputies have argued that the two words are really the same. I do not accept that at all. They are very different. But the concept of what we are trying to do is more or less the same, and, since it is, I think we should take what I would regard as the preferable road.

The Minister referred to all the various back-up facilities that will be available to marriage partners and the fact that a period of five years need not necessarily be a period when the couples are not encouraged in every possible way to try to come together to reconcile their difficulties. I too, would agree with that approach. I do not think we should make it impossible or phrase this constitutional amendment in such a way as to discourage people at any stage during the period that they are apart from coming together and seeking professional help and doing everything possible to reconcile their difficulties and save their marriage. I certainly would agree with that approach.

I would remind Deputies that if they want to speak they should offer to speak.

I was quite impressed with Deputy Shatter's legal arguments on this issue. We are always impressed with legal arguments until the lawyer from the other side gets up and tears that to shreds. Deputy Shatter was the lawyer for the defence in this case, but I am sure if he was prosecuting he would have put up a similarly marvellous performance. We are back where we started as far as the argument is concerned. All I want to do is clarify "failure" and say why I am worried about it.

I would like Deputy Haughey to clarify why he is arguing against the word "failure". I am very glad he is here to keep a rein on Deputy Woods. My worry is that "failure" will be decided on by a court of middle class, middle aged, male mostly, conservative judges appointed by a conservative Government, and it does not matter which party are in power. How difficult will they make it for some one to prove that their marriage has failed? How difficult will it be for someone whose marriage has failed, whose marriage has irretrievably broken down for five years, to convince these judges that that is so? If I am convinced by the arguments from the Government side that that is not so, there will be no problem with that word and I will be prepared to accept what they say. My only worry is that the definition of "failure" will be a personal definition of the judge. How difficult will it be for a couple to persuade the judge that their marriage has failed? I would like Deputy Haughey to tell me if he is also worried about the word "failed" or does the believe we are making it too easy for couples to prove that their marriage has failed?

Deputy Mac Giolla mentioned the kind of court which would be dealing with this legislation. We will have a new type of court — the family court. I was surprised to read an article in The Telegraph which said that the Lord Chancellor published a paper proposing various procedural reforms in matrimonial and family matters and the paper outlined the argument for the establishment of a family court. Britain has had divorce for many years and they are only now getting around to the idea of the family court. In the document of intent we have made provision for family courts. I hope we will have open minded judges, and perhaps some female judges, to deal with these problems.

I came here this afternoon because I was interested to hear what definition the House would give to the word "failure". The whole of Part II depends on the definition of "failure"— that is the layman's reading of this. As a layman I found it very interesting to hear the legal arguments today. I cannot agree with Deputy Harney's amendment to substitute the word "failure" with "breakdown". A person can have a nervous breakdown and recover very quickly because it is not final, but while the word "failure" does not satisfy me, it is closer to "final" and I would prefer if another word could be found.

The Minister said quite clearly that the use of the words "failure" or "failed" will not require separation. I am glad to hear that. I would like him to be very clear about this because it is fundamental to this discussion. I appreciate that the Minister has every intention of including in subsequent legislation periods of separation, relationships to judicial separations, separation agreements and any other kind of arrangement, but let us look at the amendment before us which will appear in the Constitution if it is passed by the people.

I take it from what the Minister said that failure will not require separation necessarily and that he, or some other Minister, will bring in legislation subsequently. I accept that fully, but an individual could challenge that legislation and could say he is not interested in what the legislation says about separation — about five years, three years or two years separation or other conditions that he is only interested in his rights under the Constitution — that a marriage has failed and the failure has continued for a period or periods amount to at least five years. There is nothing in this about separation.

I accept what Deputy Shatter said, that we have to take into account the usage of words, that the courts will refer to the normal usage of words and that they will refer to dictionaries, but there is nothing in this amendment about separation. If there is, perhaps the Minister would tell me. I accept entirely the Minister's intentions, but I cannot find in this amendment where the separation he keeps talking about occurs. As far as I can see it is not there.

I do not see how the word "failed" can be considered to include separation. If that is the case, any person could have recourse to his positive rights under the Constitution — because the Minister is including here a positive right under the Constitution — and say his marriage has failed for a certain period and he can prove it. The Minister has not defined the scale of success, or lack of success. If that is to be left totally to the courts, the courts will have to decide on some scale. Whatever the scale is, the individual will be able to say that under the Constitution there is nothing here about separation. I would like to hear what the Minister has to say about that aspect because it is very much the nub of the problem here. The Minister and Deputy Haughey have pointed out in relation to what Deputy Shatter said that each is adding to the other. Deputy Haughey made it very clear that each is dependent on the other. On the other hand, the first one is the first test. That a marriage has failed is the first test. If that test does not hold up, do you go any further from that test? It seems that you do not. If the marriage has failed, then you go on to the next test and the next test.

This is fundamental to the whole question. It must be made very clear in the course of this debate what exactly the interpretation of the words that are in the Constitution will be subsequently. If, as it seems from reading what is here — and, let me add, as I have been advised legally — it is a basic question that a marriage has failed and has failed for five years, then the bottom line is failure for five years. That is the lowest common denominator. That is the line that a person subsequently could have recourse to under the Constitution. If the Minister is the person involved he would intend, or if some of his colleagues are involved they would intend, to follow up on the statement of intent and to provide other conditions. These conditions could not override what is stated explicitly in the Constitution. The first clear statement there is "failed". The Minister said in relation to the word "irretrievable", in trying to emphasise that this failed because it would be associated with the condition at paragraph iii, "There is no reasonable possibility of reconciliation between the parties to the marriage", that that would consolidate the failure, would be additional to it, that it would be an additional test in relation to the failure. The Minister suggested that in his view that strengthened the term "failure".

There are two points in relation to that. The first is that the term "failure" has to be capable of standing on its own as the first test in the first instance. Subsequent to that one is concerned with paragraph iii "No reasonable possibility of reconciliation". Let us see how that will work out in practice. In the British Act that very term "no reasonable possibility of reconcilation" is included. In deciding how that will be implemented the British Act recognises the reality of that kind of terminology and of its restrictiveness or unrestrictiveness. I take it that that is the point we are considering now. Section 6 of the British Matrimonial Causes Act, 1973, states that provision shall be made by rules of court for requiring the solicitor acting for a petitioner for divorce to certify whether he has discussed with the petitioner the possibility of a reconciliation and given him the names and addresses of persons qualified to help effect a reconciliation between the parties to a marriage who have become estranged. This is to ensure that there would be at least attempts to get reconciliation. That boils down in practical terms to what I am told by the legal people whom I consult on these matters, that that is not a restrictive condition as the Minister suggests; it is a condition which is the normal practice in courts.

We are talking about the Irish Constitution, not the British Act.

We are talking about the interpretation of the words which will be in use. The Minister made a side reference to this suggesting that it strengthens and provides an irretrievable nature to the failure. That is the note I made on what the Minister said. I can look at his text afterwards. One of the problems with words of that sort is that those words would again be taken as they would be understood by a court or by a judge and that that is not the restrictive condition that the Minister suggests it is. I listened to what Deputy Harney said about breakdown. Breakdown is no improvement on the term "failure".

Let me point out to the House again that this amendment provides that the court can grant a dissolution of marriage in certain circumstances. It can grant it where, and only where, condition No. 1 and condition No. 2 and condition No. 3 and condition No. 4 are complied with——

All separate criteria.

——and that the proviso is complied with. If the court were to decide, for example, that it was satisfied as to conditions No. 1, No. 2 and No. 3 and not No. 4, no divorce would be granted.

That is exactly the point I was making.

That is point No. 1. It is totally unrealistic to say that these conditions bear no relationship one with the other, because they are cumulative. They must each one and all together be satisfied. It is not enough to have any one or any two or any three. Four conditions and the proviso must be satisfied. Each one reinforces the other because each one is a necessary condition on its own and in relation to each one of the others.

Deputy Shatter is the kind of person I like to have as counsel for the applicant because when he has made his case there is no point that he has left out that I would have wished to make. Le me say that I must bow to the superior wisdom of a number of Members of this House in their descriptions of how the Constitution is interpreted by our courts. Not being a lawyer, I take it as given that a fairly well settled principle of constitutional interpretation is that the Constitution must be read as a whole. Not only will courts not look at a subsection of a section of an Article in isolation, they will not even look at a given Article in isolation. Remembering debates we have had in this House and elsewhere in the last couple of years about interpretation of the Constitution, it will be seen readily that that is the case. For that reason again it is wrong to suggest that each bit of this constitutional provision can be taken out and looked at separately in isolation from the others. My only contention, which is a much more modest one, is that each one of these conditions must first be satisfied but that each one must be satisfied at the same time as each of the others and that, therefore, it is both the separate effects and the cumulative effects of these conditions that we must look at when we are assessing the guidelines that this constitutional provision will give not only to the Oireachtas but also to the courts.

I wish to take up a point which Deputy Haughey made in relation to my reference to the legislation that will follow from this. It is fair enough, up to a point, for Deputy Haughey to say that I cannot argue back from subsequent legislation and rely on the effect that that would have on the way this provision is implemented. I would not go all the way with that, but I would not go any of the way with that argument when I am speaking about the effect of divorce as provided for in the Constitution, of legislation which does not have anything to do with divorce but which governs the conditions under which judicial separations can be given. I submit that it is perfectly legitimate for me to say that the conditions under which a separation which must predate a divorce can be granted are relevant to a discussion about the provision we make for divorce. I do not intend to follow up that argument except to make the point that, when I am talking about actions and conditions that must precede a divorce, it is legitimate to speak of them in relation to the provision that we make for divorce. Deputy Harney contends that failure implies that there was never a happy or viable relationship. That is not so because in any field of endeavour or activity there can be failure after a period of success. I do not think one could argue that a marriage could never be a failure if it had been a success for any period. We all know that conditions and people's views can change and that their approach to life or to their partner can change. A number of variables can affect people's behaviour at any given time. It is not the case that the determination that a marriage has failed necessarily requires, even philosophically, that there should never have been a period during which that marriage worked.

Deputy Harney made a number of criticisms regarding the use of the word "failure" and then described the term as subjective and ambiguous. It cannot be all that subjective and ambiguous if Deputy Harney can claim, for example, that it is hard on children or that it means there was never a happy relationship. As I said earlier on — I do not want to labour the point — we are not talking about the subjective opinion of either or both parties to a marriage, we are requiring that a court be satisfied that there has been a failure on the basis of the evidence presented to it.

Deputy Harney would be happy to add the word "irretrievable" to her amendment, to her suggestion that we bring in the word "breakdown". That brings me back to the construction of the constitutional provision. Let us look at what happens to a case before the court. The court will have to be satisfied that a marriage has failed, it must look at the other conditions and be satisfied that the failure has continued for a period or periods of five years. It then must look at whether there is a possibility of reconciliation between the parties to the marriage. It can be satisfied that that condition is fulfilled only if, by definition, it is satisfied that there is no possibility or prospect of those people getting back together in a marital relationship that will be anything but a failure. The only point I was concerned to make earlier on was that, whatever Deputy Harney may feel about failure as opposed to breakdown, there is no need, once the third condition is there, to be concerned about the word "irretrievable" being inserted because that condition describes a condition of failure which is "irretrievable".

Coming to Deputy Haughey's point about the separate periods, it is perfectly conceivable that people would come to the belief that their marriage has been a failure and that they would separate for a period. As I said earlier, they might conclude after a period of separation that that separation was not doing what they expected it to do for them and might reflect and agree that they would try to get back together again to see whether a reconciliation could be brought about. If a reconciliation is effected then, by definition there has not been a failure and a court would not be so satisfied. If, after a period of trying to see whether reconciliation was possible, they conclude that they cannot be reconciled, there has been a failure. What has happened in the meantime, as far as the provisions of the constitutional amendment are concerned, is that — to use the simplest phrase — the clock has stopped as far as the length of time over which the failure has existed is concerned in the eyes of the court, although perhaps not in the view of the people concerned. If they conclude, after a period of attempted reconciliation, that there is no point in the reconciliation, then they have concluded that there is a failure. It is no argument to say that we should not take account of that, simply on the basis of the fact that they have again concluded that there has been a failure. As I said earlier on and as Deputy Shatter was concerned to point out, we do not want to have a provision which in any way constitutes an obstacle to people who believe, for whatever reason, even without any foundation, that there is some hope of getting back together, which would constitute an obstacle of doing so.

I am sorry that Deputy Mac Giolla has left. When he described the Judiciary he was describing himself because a number of the phrases he used suited him to a T. I am too mannerly to point out in what respects they describe him but he would qualify on each criterion on its own and on all of them together. He wonders if the concept of failure which we have introduced here is too difficult to sell. I am paraphrasing his words but it is reasonably faithful to the sense of his question. Perhaps it is difficult to "sell" and it arises from consideration of the points raised earlier on as to why we should not simply follow the course of deleting the existing provision from the Constitution simpliciter. I do not think that that would be desirable on constitutional grounds or acceptable, given what we know so far of the minds of the people in relation to this issue. Since that is not the case we have to produce another provision that will replace the one in the Constitution. The one before the House is the one we believe is most likely to be in tune with the feelings and wishes not just of the Oireachtas but of the people who will have their opportunity to pronounce on it.

I am sorry, I must abjure the use of "Doctor" and use the word "Deputy" when referring to Dr. Woods because the former is improper parliamentarily. He wondered if an individual could subsequently challenge legislation that provided conditions in relation to separation because the Constitution will speak only of failure, not separation. I invite Deputy Woods to look again at the provision. Sub-article 2º (iv) says that the court will grant dissolution of the marriage where it is satisfied that any other condition prescribed by law has been complied with. In the statement of intent we have set out a number of such other conditions. It is not necessarily an exhaustive list, but we have set out other conditions, which include the question of separation. It is right at this stage to speak about subsequent legislation if only for the reason that we are speaking of other conditions of law, compliance with which the court would have to look at in granting a decree of divorce.

In this connection I should like to point out that those other conditions imposed by law could not in any way derogate from the provisions of the Constitution. They could not constitute a relaxation by comparison with what the Constitution provides. They could only go further, could be more restrictive than what is provided for in the Constitution. They can only add to what is in the Constitution and cannot take away from it.

For the reason I have given the other fears of Deputy Woods are groundless. For example, it is not the case that an individual could come back and say that the Constitution speaks only of failure and, therefore, one may not make any conditions in regard to separation. Sub-article 2º (iv) is specifically inserted in order to ensure that the law can provide for other conditions and that the Oireachtas, if it feels that that is the right thing to do in the future, can provide other conditions. I am convinced that the reference by Deputy Woods to the UK legislation does not have any relevance in this connection. What we are talking about in relation to the possibility of reconciliation is a condition imposed by the Constitution on which the court must be satisfied before it can grant a decree of divorce. We are not talking about a request or a facility for a solicitor or anybody else to raise the matter of reconciliation with the parties for divorce. We are talking about a requirement that the court be satisfied that there is no possibility of reconciliation before it can grant a decree of dissolution. The two situations are not in any way comparable.

I had intended to leave this issue until Deputy Mac Giolla, with that capacity he has to personalise these matters, asked me to explain myself in regard to the use of the word "failure". I am very willing to do that. I should like to explain to Deputy Mac Giolla that what we are doing here is discharging one of the most important of our duties as an Oireachtas. The Constitution is very clear on this. Before the Constitution can be changed by way of referendum legislation must be brought into the House to enable that change to take place. The purpose is that that legislation will give the House the opportunity to explore every aspect of the proposed change so that going into the referendum the voters will have the benefit of having had the matter thrashed out in the Oireachtas.

This elaborate procedure is included in the Constitution so that the Oireachtas will debate fully for the benefit and information of the people what is proposed. That is what I am doing in this regard. I am trying to tease out, as is the Minister, for the benefit of the people the exact implications, aspects and meanings of the words we are going to ask the people to vote on. We are asking the people to vote for or against a set of words which change the Constitution and, therefore, it is very important that they should fully understand the exact meaning of every word. It is very important that the Oireachtas should try to tease out for them in advance of their voting the meaning of every word.

The word "failure" is a key word and it is important that we should fully understand exactly what it means. I should like to give an illustration of the importance of words in the Constitution. In this regard I disagree with Deputy Shatter. If one looks at Part II one will see that it states, "where, and only where, such court established under this Constitution as may be prescribed by law is satisfied ...". The word "satisfied" has a very important meaning in legal parlance. Sometimes in statutes the phrase, "where the Minister is of opinion", is used and the other phrase used is, "where the Minister is satisfied ...". There is all the difference in the world between the two words, "opinion" and "satisfied". If the statute uses the phrase, "where the Minister is of the opinion", it is entirely within the discretion of the Minister and he does not have to justify his action to anybody but form his own opinion about the matter. However, if the statute uses the word, "satisfied", the Minister has to prove and give reasons, in court or elsewhere, why he did something. That illustration underlines and emphasises the specific importance of particular-words in this or any other constitutional or legal context. We have in the Bill the word "satisfied" and that means that the court cannot form an opinion of its own volition about the matter but will have to have before it reasons for coming to a particular conclusion.

I should like to ask the House to get away from the idea that we can have some sort of composite meaning or a whole lot of things coming together to give a meaning in this constitutional context. I should like to emphasise that in a Constitution every word has an importance and a significance and can be of very real operative effect. I have had the experience of having pieces of legislation upset because of conflict with one word in the Constitution and not on the reading of the Constitution as a whole. The more one thinks of the concept advanced by Deputy Shatter the more absurd it becomes because there are parts of the Constitution which are directives on specific issues. They must be read by themselves. Therefore, if the House is going to ask the people to put these words into the Constitution it is the duty of the House to tease out for and explain to the public exactly what the words mean.

Why am I focussing on the word "failed" and posing the question as to whether we should not insert "completely", "totally", or some such word before "failed" or "breakdown"? I am doing it because the Taoiseach went to great trouble to persuade the House that the word "failure" had finality. Paraphrasing what he said, he said the Government have examined this very carefully and they are satisfed that the word "failure" has the greatest degree of finality over anything else, that the word "failure" had this inherent quality of finality. I am suggesting that it has not. I think the Minister agrees with me now, that it has not finality.

It is an important consideration. I want to repeat my argument, because the Minister still does not understand my contention in regard to paragraph (ii) and its bearing on this matter. I might talk on another occasion about paragraph (ii) and a period of failure of say, five, three, two years or whatever, but I am not talking about that here. In this context I am merely directing attention to paragraph (ii) because of the bearing it has on the word "failure". In the very instance the Minister gave he said there could be a marriage which would last three years, then would fail for a period, then would be successful again and then would fail again. In that instance the Minister quoted the court could take the first period of failure, and add it to the second period of failure to get the requisite five years. My argument is that, because there is an in-between period in which the marriage has been successful again, the first period of failure had not any finality about it. Surely that is crystal clear. If this amendment of our Constitution envisages a five year period, which consists of two separate periods of failure, not continuous, then the first period of failure was not final and could not be final if the marriage has been successful again for a period. All I am asking is that we accept, in spite of the Taoiseach's argument, that the word "failure" or "breakdown" does not have finality.

Why am I pursuing that question of whether or not any of these words we are asked to consider has this quality of finality about it? I am doing so because surveys, opinion polls and other mechanisms have told us that, to a greater or lesser degree, there is a section of our community who would accept divorce provided a marriage has finally, irretrievably or completely broken down. It is for the benefit of that section of the community that I want to pursue this matter. If they were satisfied that the word "failure" did incorporate this element of finality, then, presumably, they would be satisfied. They could say: "Now it is in the Constitution that a marriage must have totally, finally, completely, absolutely ended, collapsed, broken down, failed before a divorce can be considered." It is of great importance and significance to that group of people that they know whether or not what they hope will be inserted in the Constitution means that marriage must be finally broken down or have failed before the court can consider dissolving it. I hope that constitutes an answer on my part to Deputy Mac Giolla. It is important that we in this House — whether or not we come to a decision on it — at least tease out for the benefit of a large section of the people who will vote in this referendum what exactly is involved in the use of the word "failure". I am suggesting that it is clear from our discussion up to this point that neither the word "failure" nor the word "breakdown" on its own means that a marriage has gone beyond repair, is irretrievable, or whatever other word one likes to use.

I hope I am not being repetitive, but I want to suggest to the Minister that it is a reductio ad absurdum for him to argue for the form of words before us on the basis of legislation he intends to introduce. I shall leave aside for the moment the fact that he might be restructured and might never have the opportunity of introducing the legislation he has in mind.

That is a reductio ad absurdum on the part of the Deputy.

We will not go into any contentious realms of that kind. But it is a qualification we must have at the back of our minds, that it is the intention of this Minister — by the way it is not even this Government because I understand that some members of the Government do not go along with this — to introduce particular legislation later on that cannot be used to reinforce these words here. First, that legislation may never be passed but, even if it is, these words here will govern that legislation and not vice versa. As my colleague, Deputy Woods, has said, we must look at these words on their own, by themselves, as something that will be inserted into the Constitution, be there permanently as principles that will govern all subsequent legislation, not just the legislation the Minister has in mind.

Therefore we can come to a conclusion on this matter only on the basis of what is before us here as an amendment to the Constitution. I want to suggest that, in so far as a section of the people is concerned, this amendment, as it stands — though I do not suggest it is not capable of doing the job — does not provide for them the safeguard that divorce will be introduced only when marriages have totally and finally broken down or failed beyond recall or any possibility of recovery. Perhaps the difference between Deputy Harney and I is that she wants to substitute "breakdown" for "failure". The Minister says "failure" is a better word. My difference with both of them is that neither of the two words, on its own, meets the wishes of a large section of the people that I think both the Minister and Deputy Harney wish to meet, namely, people who would be more inclined to vote "yes" in the referendum if they knew that enshrined forever in our Constitution was the provision that divorce would be granted only when marriages have totally and finally broken down. That is my reason for spending so much time on this word. I think Deputy Harney's amendment has directed our attention to the fundamental importance of this matter. I am not arguing for one word versus the other. I am arguing that, whichever is to be used should carry an added qualification which would give it that finality the Taoiseach claims it has already.

I agree with Deputy Haughey that it is essential the people know that the amendment of the Constitution being proposed limits the possibility of divorce to circumstances in which a marriage is clearly at an end, dead, completely and utterly beyond recovery. I am satisfied that the Article does do that.

I would agree with Deputy Haughey also that the word "failure" does not, of itself, mean the complete, utter and unavoidable finality. In my opinion the Article recognises that fact, I do not think there need be, or that it is appropriate that there should be controversy here about that, for this reason. If the word "failure" meant a complete final and utter breakdown, that a marriage was completely dead, then there would be no necessity at all for subparagraph (iii), that that would be complete surplusage. If "failure" meant that a marriage was irrecoverable or irretrieveable there would be no need for and one would not insert paragraph (iii).

The fact that paragraph iii is put in at all implies clearly that it could be that a marriage will have had a long history of failure, resuscitation and again failure, but at a particular time the situation crystallises and the court find the marriage in a position of failure, be it subjective or objective. Having heard the evidence, the judge comes to the conclusion that the marriage at that particular point is in a state of failure. I accept, that being so, that there is always the possibility of resuscitation if that is all one could say about the marriage. It would not be sufficient — and I would not support it — if the state of failure were all that was necessary. There is more to it than that. The judge is obliged to ask, the marriage having failed, if perhaps there is a possibility of resuscitation and reconstitution of the marriage. He has to ask further if there is a reasonable possibility of resuscitation. In many cases the judge could come to the conclusion that the marriage had failed but that there was a reasonable possibility of reconciliation and therefore that it was not open to him to grant a divorce because he was not satisfied that there was no possibly of reconciliation.

It is implicit in the wording of the Article that there is no finality about the word "failure". That follows, because if one had come to a different conclusion one would not have added paragraph iii. It would be like saying that something was completely dead and buried but yet there is talk about bringing it back to life again. It is not sufficient for an applicant for a divorce to do no more than satisfy that court that the marriage has failed at that time. He or she has to prove that there is no reasonable possibility of reconciliation arising at some future time. That is a pretty heavy burden of truth. It could well be argued that paragraph iii is too restrictive in its wording, that the phrase "any possibility of conciliation", or other phrase could be used instead.

The word "breakdown" suggested by Deputy Harney is weaker than the word "failure". "Irretrievable breakdown" would have to be there as the absolute minimum. I do not think that there is a great deal to choose between "failure" and "irretrievable breakdown" so far as paragraph i is concerned, but one cannot dissociate that and look at it in isolation from paragraph iii, on which the court also has to be satisfied. It was never intended that the mere fact that the marriage had at that time failed ended the matter. Quite clearly it does not.

The Minister has mentioned paragraph iv as a hold all at the end, that anything which is not already included in the sections above will be caught here.

That is an excessively crude interpretation of what I said. It is not a hold all or catch all phrase. It is there in prudence, to allow the Oireachtas, if they believe that there is a reason for so doing, to add additional conditions in the future. That is a little different from a catch all.

The Minister was putting forward as a security, if you like, on the other three tests this fourth condition, provided that any other condition prescribed by law has been complied with. He raised this point in the context of concerns about the question of separation and whether there needs to be any period of separation at all, as I understood it. It is clear that it certainly does not require a further constitutional referendum to lower the separation period already intended. I accepted that the Minister's intention is five years, but that intention can be changed without any subsequent constitutional referendum. I mention that as something which has been raised outside in the media. It is quite possible that no separation period could be built in subsequently. That would depend on the decisions made by the Minister or by his successor, whoever that might be, in the light of time. In that event the term "failure" would stand very clearly on its own, notwithstanding the Minister's suggestion with regard to paragraph iv.

If one spouse considers that the marriage has failed, in those circumstances has the marriage failed? If I remember correctly, on Second Stage Deputy Shatter gave as his view that it would have, but that the applicant for the divorce must go to some proofs. We have difficulty at this stage in knowing exactly what proofs of failure might in practice be necessary. If one spouse considers that the marriage has failed, will it then be possible for him or her to obtain a divorce on a unilateral basis?

In relation to collusion or agreement between the two spouses that the marriage has failed, will anybody be able to say in those circumstances that it has not? Does that not leave the children of the marriage in a vulnerable position, because of what I would regard as the unrestricted nature of the term "failure"? The Minister has said, with regard to paragraph iv regarding any other condition prescribed by law, that one could not derogate what was in the Constitution. I would agree entirely with him on that; there is no question about it. What would be in the Constitution would be that a marriage has failed and that that failure has continued for a period of, or periods amounting to five years. I do not think one could supersede it either.

In other words, one could not introduce a condition under iv which would supersede the term "a marriage has failed" and the definition or the understanding or the resolution in practice of "failed" because it would be a matter for the courts to determine what "failed" is. While on the one hand the Minister says one could not derogate from what is there — and I agree entirely with that — as I understand it one could not supersede what is there either because what is explicitly stated in the Constitution would take precedence and anything which would come within iv would have to be by way of a further definition or supplement to what was there. We are considering the question on which the whole section seems to be founded, that is, the understanding of the word "failure".

The Minister said earlier that the word "failure" is supported by there being no possibility of reconciliation. I genuinely fear, as the experience in other jurisdiction shows, that the term of "no possibility of reconciliation" in practice is not found to mean what the Minister is suggesting. In practice it does not have the force or the degree of restriction which the Minister is suggesting. For example, does the possibility of reconciliation not depend on the willingness of both parties to attempt or consider reconciliation? In those circumstances, if one party has set his or her mind against reconciliation or is even considering it, is there any useful function that the court could perform? What function has the court if one party says "I am not interested in reconciliation. The marriage has failed"?

In trying to see how those things might be applied in practice I looked at the British situation and I found that it becomes an empty formula of words. It is simply applied by somebody asking the parties to a marriage if there is any chance of a reconciliation. The court would check from a solicitor if that was done. In saying this, I am suggesting to the Minister that that formula of words, in addition to the initial paragraph i., which says that "a marriage has failed", does not give the degree of strength or force in practice which the Minister accords to it or seems to expect that it will give. If that is the case, one goes back to the basic meaning of the word "failure" and what the understanding of the court will be in relation to its meaning.

That is the difficulty I see in relation to this section, the question of no possibility of reconciliation. As a matter of interest, I was talking to some social workers over the weekend and their view was that, once the first solicitor's letter arrives, there is almost no possibility of reconciliation after that, or it makes reconciliation very difficult. Each profession will have its own view and its own approach. I appreciate the Minister's intention, as I would agree with the intentions on all sides of the House, in wanting to see every effort at reconciliation through mediation. Family courts would support that approach totally. There is no question about that from our point of view. Nevertheless, when one comes down to where reconciliation will apply and what force and value it will have in relation to a situation where a couple are already before the court, the indications are that the additional term which is given in iii of "no reasonable possibility of reconciliation between the parties to the marriage" will not in practice strengthen paragraph i which is failure. If the Minister thinks that that is the equivalent of stating that there will be an irretrievable situation, and the Minister has said very clearly that he sees that as providing the irretrievable element in relation to the failure, the practice will show — I am quite certain from the lawyers I spoke to, who regard these words as not performing the function that the Minister has in mind — that it does not support the word "failure" or strengthen it to any real extent.

May I say I agree very much with Deputy Haughey about what the function of the Oireachtas is in analysing a proposal of this nature very carefully. Some of the comparisons and some of the history that he gave us of other clauses that fell to be examined were very helpful. It that is so, it is incumbent on those who contribute to a discussion like this that they do not oversell their own cases. I have to say that some of those who have contributed have been guilty of that, some in a relatively minor way — I mention here Deputy Harney — and others in a much more serious way, I think here of Deputy Woods.

As I understood Deputy Harney in arguing for "breakdown" and against "failure", she suggested some time ago that failure would have some element of fault-finding and that it would have some element of stigmatising. She suggested that such a course, were it to be the case, would be in contrast with what was the unanimous wish of the all-party Oireachtas committee that were there to be a divorce jurisdiction it should not be based on fault. I have to say that that argument is an unhelpful one and one without any substance. There is the world of difference between the extent to which the word "failure" is used here and that which caused concern to the all-party committee. I was not a member of that committee, a number of people in the House were; but, as I understand it, the all-party committee were faced with a situation where they said that, if there was to be a divorce jurisdiction, there were two extremes in which that jurisdiction could be placed. One was on the basis of a fault-based divorce. Along that road was the boom for the private detectives in Bray or Greystones or wherever was going to take over from the Brightons of earlier decades. The other, which was regarded as being the much more satisfactory approach, was based on irretrievable breakdown. There is no departure from that commitment in the use of the word "failure" in this clause.

More serious is the approach taken by Deputy Woods, which is the one more seriously flawed. I have to say at times he has completely misunderstood what this is all about. Nowhere was that misunderstanding more clearly exposed than when he dealt with the relationship of this Article to be inserted in the Constitution with the people's assent and any legislation which might follow. He said he accepted the Minister for Justice's comments that any legislation could not derogate what was in the Constitution. We all agree with that, but he said that neither could the new legislation supersede. I cannot see how that argument can be made by one who stops for a moment and reads because the judge, in considering whether or not to grant the decree of divorce, is required to address himself, in effect, to five tests: the test of failure or non-failure, the test of duration of failure, the test of reconciliation, the proviso dealing with the way in which provision has been made for spouse and children and also whether or not other additional requirements prescribed by law have been fulfilled. It is quite clear that this Article states that it is not open to the Oireachtas or to any court in granting a dissolution to apply tests less restrictive than those contemplated but it is open to the Oireachtas and the courts to apply standards more restrictive in a number of respects.

With regard to the word "failure", which has caused some difficulties, I reached the same conclusion as that reached by Deputy Taylor but by somewhat different reasoning. Let us consider, first of all, in what circumstances this test is to be applied. The test is to be applied on the basis of the judge asking himself as a first question: has this marriage failed? That question can only be answered on the basis of, has this marriage failed, broken apart for all time and all the other synonyms offered by Deputy Haughey. If the judge in considering the evidence felt that this marriage is now in difficulty and the parties are apart but that those difficulties may not last and there is a possibility of them coming together again, he could not answer the question that the marriage has failed in the affirmative. That would be the case if that were the only condition that applied. It does not stand alone. We are not dealing with, as Deputy Haughey said, this word or the alternative words on their own. We are dealing with a judge applying five separate cumulative tests. In this case, before he can pronounce a decree of divorce he must be satisfied that the marriage has failed. I do not believe that anybody could be satisfied that a marriage has failed if in his own mind he was left in doubt as to whether or not there was the possibility of the parties coming together again. It is further made certain by the fact that he has to specifically say: is there any reasonable possibility of reconciliation between the parties concerned? What is involved there is a double barring of the safety gate. That is an entirely appropriate approach.

Deputy Woods suggested that paragraph (iii) is of little substance. He compared it with the position in England and suggested that an analogy is to be drawn. That proposition is so extraordinary that it cannot be made in good faith. Let us consider what is involved in the two jurisdictions. In this jurisdiction there is an obligation on the court to be satisfied. Deputy Haughey, in his historical parallels earlier, very helpfully pointed out to us just how onerous is that obligation to be satisfied as distinct from being of opinion or any of the other requirements that are sometimes put on courts or statutory bodies. In this instance it is a question of the court addressing itself to the opinion, not being inclined to think but being satisfied that there is no reasonable possibility of reconciliation. In contrast, what is at issue in Britain is that the legal advisers get formal proof from the applicants. The contrast is between, on the one hand, a rule of procedure and, on the other hand, a solemn constitutional obligation that rests on the court, and not on the lawyers, the parties or anyone else, to be satisfied.

Deputy Woods asked what would happen if one party is satisfied that the marriage has failed and the other is not. This is not for the parties to address. It is not a question of what their subjective opinions are, however well intentioned, carefully considered or well founded, as to the prospects of a reconciliation. It is a matter for the court to address and to be satisfied with. Only if they are satisfied should they pronounce a decree of divorce. In those circumstances the Article achieves admirably the objective which it set itself, which was to respond to the very substantial section of public opinion that Deputy Haughey spoke about who would be happy to see divorce jurisdiction available but only on the basis of very limited circumstances. That has been achieved by this Article.

The discussion which is taking place is a very valuable and useful one in trying to tease out these difficulties. It underlines, for me at least, the problem that our Constitution poses because of the detailed nature of it and because of the fact that we have to write into it so many detailed provisions by contrast with some other written Constitutions which confine themselves to general statements of principle and allow all the detail to be worked out in legislation. For better or for worse we have an extremely detailed Constitution. One of the consequences of it is that when a change of this kind is being made it must not only be a repeal of the provision which is proposed but also its replacement by something fairly detailed. When we get into that sphere of detail we get into the sort of difficulties in which the House now finds itself but not in any acrimonious form. There is concern on all sides of the House about the meaning and significance of various words. Even if the amendment in Deputy Harney's name is not drafted in precisely the way it should be, the idea put forward in her amendment is one which is superior to the wording which exists in paragraphs (i) and (ii) of this section. As she said, the whole concept of failure, however it is defined, is a more subjective concept and more difficult for a judge to be satisfied about than the concept of irretrievable breakdown.

Perhaps on Report Stage we should consider putting down an amendment, if this amendment is not carried, to make paragraph (i) read, "a marriage has irretrievably broken down". If I heard him correctly, Deputy Haughey felt that the wording might be something on the lines of, totally and finally broken down. The difference between that and irretrievably broken down must be minor. I would not mind seeing all the words inserted if it helped to get more general agreement in relation to this.

In the discussions which took place before this Bill was published most people were agreed that irretrievable breakdown should be the basis on which divorce would be introduced and that it should be irretrievable breakdown for a specified period of years. Some people thought it should be two or three years and others thought it should be a longer period. The Government finally decided on five years. I think it may be a little on the long side but I am quite happy to go along with that aspect of it. When we were talking about irretrievable breakdown for five years we had in mind that it was something objective, something with which one could identify, something that one could see. How can one describe failure for a period such as that, where the whole concept is so much more subjective and where what may be failure to one judge is not failure to another judge? Their idea of failure is different from that of their colleagues. Until we saw the words we did not see any difficulty in this. Now that we have been able to consider them we see much difficulty. This amendment would minimise it because it would introduce a greater degree of objectivity. I am aware of marriages where the parties have not spoken to one another for more than 15 years.

Tugadh tuairisc ar a ndearnadh; an Coiste do shuí arís.

Progress reported; Committee to sit again.
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