Amendments Nos. 1 and 2 are being discussed together. Deputy O'Malley is in possession.
Private Members' Business. - An Bille um an Deichiú Leasú ar an Bunreacht 1986: An Coiste (Atógáil). Tenth Amendment of the Constitution Bill, 1986: Committee Stage (Resumed).
I am afraid the Deputy is unavoidably absent.
Since Deputy O'Malley is not here, I shall decide amongst those offering whom I shall call.
On that basis, I have no objection to Deputy Harney being called.
I shall not object to the Chair's ruling.
I am calling Deputy Harney, but I want to make it clear that I am not calling her because Deputy O'Malley was in possession.
Thank you, a Cheann Comhairle. Before the adjournment of the debate, we were discussing the fact that the concept of failure is a very subjective one. Effectively, it means that different judges can place different interpretations on what exactly constitutes a failed marriage. For that reason we would prefer to see substituted for "failure" one of the following phrases: irretrievable, or final, or complete breakdown, as Deputy Haughey suggested. These would be far more in line with what we are discussing here. The stake here is that a relationship may have been viable, happy and successful for a long number of years but has now finally and irretrievably broken down. The word "breakdown" explains that position far more clearly, concisely and precisely than the word "failure".
The Minister has said that there is no concept of fault involved. However, Deputy Woods made reference to the breakdown of a car which can be mended, but the car which fails is possibly one which never worked. The concept of failure allows for no success, or achievement, or hapiness, no pleasant memories to look back on. That would be most people's concept of a failed marriage. The Minister has said that despite my saying that the Government's proposal was ambiguous and unsatisfactory, I was able to find very clear ways of explaining what I meant. For the parties involved, it makes it all the more difficult that they are described as failures in some sense. The same applies to the children of that marriage. It would be better for them to realise that their parents' marriage had broken down, rather than that it had failed.
Many people would consider that in a failed marriage there had never been an element of success, or that there had not been any viable relationship. Also, it leaves too much responsibility with the individual justice. We have seen in recent years in our courts interpretations of the law allowing very different penalties to be imposed for almost similar offences. There is too much flexibility allowed. Because it is so subjective, it may well be the case that a particular justice might concede that a relationship had broken down, perhaps irretrievably, with no chance of reconciliation, but that it was not a failed marriage because there were three lovely children of the marriage and the parents had gone on holiday together for ten years out of possibly 15 years, that they had a nice home and good jobs. That is not beyond the bounds of possibility when we consider some of the decisions emanating from some of our courts, particularly in recent years.
The Minister and Government and all Deputies are trying to recognise, through the constitutional amendment, that marriages in this country irretrievably break down and to allow those people so affected to have that marriage dissolved and have an opportunity to remarry in this country. Since that is what we all are trying to achieve, we should not be too paranoid about changing words simply because some people might take an incorrect interpretation, that some might believe it would be easier to obtain a divorce if the word used were "breakdown" rather than "failed" and that the referendum might not succeed. People will misinterpret, no matter what wording is used. We already find our efforts being misinterpreted and people are being frightened. That will happen, no matter what words are used.
What we must ensure is that the words which we write into the Constitution are adequate and reflect the reality of what we are talking about and, above all else, reflect the reality of the position of those whose circumstances we are trying to help by showing our recognition of there having been a viable relationship, perhaps of many years' duration, that there has been an irretrievable breakdown but that we are not talking about such people in the context of their being failures or failed people in any sense.
I have already made my contribution, but having regard to the length of time that has been spent on this amendment, I feel motivated to come in once again and copperfasten my original contribution. It is very important that this debate should not be taken for granted. In that regard we should be very greatful indeed to Deputy Harney for going to the trouble of proposing her two amendments. This has varied the debate and opened it up to a great degree. Deputies should thank that Deputy. I am placing on record my appreciation of the opportunity that her amendments have offered, not only to myself but to other people. Those who might be dismissive of them should not be so. Rather should they be seen as an effort to improve the wording in the Government's amendment.
However, I do not agree with the proposed amendment because at this stage, and I do not mean this as a carping criticism, but as a help and assistance, the difference between the dictionary definitions of "failure" and "breakdown" are so minimal as to offer, in fact, no real difference. The Government have quite clearly examined the matter, through the apparatus available to them and not available to me, or Deputy Harney, or others, and have come up with this wording. They have decided, in their wisdom or otherwise, on that wording. I submit that the word "failure" is adequate as compared with the word "breakdown".
The Minister for Justice is approaching this matter in a most civilised fashion. We should be grateful to him for that. He has helped to keep the debate on an even keel and the tenor of the debate has been proper and reasonable which is as it should be in a matter of this importance. However, it appears that there were a number of Deputies behind him who made references to the effect that the spokesman for the Opposition, Deputy Woods, was putting forward an argument which was seriously flawed. I take exception to a remark of that nature. Deputy Woods, like myself, is entitled to make his observations on this proposal without that sort of comment from Deputies who rush in and out again with a hit and run comment.
That is very unfair. I may not altogether agree with my colleague and friend, Deputy Woods, and the thrust of his argument on Second Stage, but I would not deny him the right to make the argument that he has made in a well researched and thorough fashion. I do not necessarily agree with what he has said but I do not deny him the right to say what he said. The people from the other side who appear to be representing themselves as a little bit more than they are, namely, as Ministers, seem to be responding on behalf of their own Minister. They should take a leaf out of their own Minister's approach to this debate. I reject the suggestion that there is a great air of artificiality about this discussion and I reject that the debate in some way has broken down in its interpretation. We should approach this debate as men and women of the people rather than men and women of the law. If we keep to the grass roots approach to the subject, we will be doing it a justice rather than an injustice and a service rather than a disservice.
To return to the suggestion that the words "failed" or "failure" should not be examined, of course, they should be examined and they should be set off quite properly against the amendment proposed by Deputy Harney. Even if we did not have the amendment from Deputy Harney, we still have a fundamental obligation to examine the proposed amendment to the Constitution in absolute detail. That is what we on this side of the House have done, albeit with a different emphasis. Why not? Is that not what democracy is all about? I do not intend to speak for any length of time because I have said what I have to say on the amendment, not only in my contribution on Second Stage but also in my first contribution on Committee Stage. From now on, I will be at risk of repeating myself and that I do not want to do.
It would be wrong of me to let the matter conclude without replying to some of the points which have been made. I go back to Deputy Haughey's question about the finality that attaches to the word "failure" and I must say, and I hope the House will not think me obdurate for saying this because I have listened very carefully to what has been said, I am still not convinced, quite the contrary, that "breakdown" is a better word to use. As I have pointed out, I believe there is a greater connotation of finality about the word "failure" than there is about "breakdown. Deputy Haughey put the question in these terms: if we talk about more than one period of failure, can that possibly mean that there was a failure there in the first place?
I answered that earlier on by saying broadly this, that if the two parties to a marriage decide at a given point that something has gone seriously awry with their marriage and believe they should separate or cease to live together in a marriage bond that prima facie is evidence of failure of the marriage. As I said before, they may find after a period of separation that that separation is not achieving what they thought it might achieve. They could then decide to try to effect a reconciliation. If they succeed in effecting a reconciliation, so much the better. If they succeed in effecting a reconciliation that lasts, they were wrong in the first instance, their marriage has not failed. If, on the other hand, after a period they find that the marriage still does not work, it is reasonable to conclude that there was a failure in the first instance. We cannot parse and analyse each individual case. One could argue that in some cases the fact that they did not succeed in a reconciliation indicated that there has been a failure in the first place, not immediately on marriage but after a period. That, therefore, should be taken into account in the way that is set out in the text before us and counted as part of the period of failure or periods amounting to, at least, five years.
It is conceivable also that if two people, having decided that something was awry with their marriage, subsequently tried to effect a reconciliation which worked for a time and then concluded again that something was awry with their marriage, one might decide that the failure had not existed the first time but existed the second time. That is one of a number of reasons for leaving a margin of discretion to the courts. Deputy Harney seems not to like that but I do not think that we can conceive of a legal system worthy of the name that would absolutely tie the hands of courts. If one pushes that argument to its extreme, one will find that one does not need courts at all because all of the cases would be dealt with in legislation. I do not accept the validity, I say this without any wish to start an argument or row in the House, of an argument that says we cannot trust the courts.
I put that question when I was concluding on Second Stage last Friday. I asked the House to consider very seriously if it supported some of the suggestions which were made during the Second Stage and I asked the House to consider the question, are we really saying that we cannot trust the Judiciary who have taken an oath to uphold the Constitution? That is a question which has to be asked because during the course of this debate suggestions may be made without their being meant that in some way we should decide that we do not trust the courts. I do not believe that that is an argument which can be sustained nor do I believe that it is one that is justified either on the basis of our past history or on the basis of any expectation as to how the courts would handle the legislation which is before us.
Deputy Woods asked what would be the situation if one partner considers that there is a failure and believes that that is a ground for divorce. I dealt with that question already. We are dealing here not with a subjective judgment by either or both of the partners to a marriage that there has been a failure, we are providing the framework within which a court will decide on the basis of the evidence that is presented to it that there has been a failure in that case. Deputy Woods went on to raise another question, one that has been raised both inside and outside of this House, and that is the question of collusion. He asked, what if there is collusion between two spouses, if they agree between themselves to say that the marriage has failed and what will happen to the children after that?
The first question that springs to mind reflecting on what Deputy Woods has asked is this: If the marriage is a success, what possible reason can the two spouses have for colluding in showing that it is a failure? If the marriage is not a success, is there collusion if one spouse says. I do not want to have anything more to do with this? Is there collusion if between them each one of the spouses separately and then jointly say: This is not working out, we will adopt the procedures which are laid down in the law, first, a separation and, then, a divorce? Surely, that is a question that they have to settle for themselves. To bring up as an issue the possibility that people would collude between themselves to represent a situation as being one of failure is to start off on the wrong foot. If that is their opinion or if that is what they have decided to do, surely, by definition there has already been a failure because if people get to that point obviously they cannot seriously be involved in what we would normally regard as the life of a marriage.
Deputy Woods raised the question of condition No. 4 in this proposal and wondered if provisions could not be introduced to supersede the condition that there has been a failure. I am not sure what Deputy Woods means by provisions that would supersede it. As I pointed out, condition No. 4 provides the ability for the Oireachtas to add other conditions to those that are set out at (i), (ii) and (iii) and to the proviso. They cannot be conditions that alter the Constitution by definition because we cannot do that by legislation. They can extend it and add to the conditions but they cannot derogate from it. The extra conditions that would be applied can go in only one direction.
Deputy Woods than asked what is the meaning of the condition that the court be satisfied that there is no reasonable possibility of reconciliation between the parties. He claims that these terms do not have meaning, force or restriction. He points to situations in regard to other jurisdictions and asks quite reasonably if the possibility of reconciliation does not depend on the willingness of both parties to attempt it. I would have to answer that it is perfectly clear that the possibility of reconciliation depends crucially on the degree of willingness of the two parties to attempt it. It is quite clear that if each of the two parties is willing to attempt a reconciliation there is some possibility that a reconciliation will be brought about. If one of the parties is willing to attempt a reconciliation and the other is not, I find it very difficult to see how a reconciliation would be brought about in those circumstances.
To argue from the point of view of the English provision and to say that the provision we have here would not have any meaning is wrong. Out of respect to the vicarious sensitivities of Deputy Andrews, I will not say that there is a flaw in the argument; I will say that it is wrong. The English provision provides — Deputy Woods read a part of it — that rules of court may be made requiring a solicitor to certify whether he has discussed the possibility of a reconciliation with his client. It also provides that if at any stage of the proceedings it appears to the court that there is a reasonable possibility of reconciliation then the court may adjourn the proceedings in order to enable the attempt to be made. That provision is totally different in character from the provision in the proposed amendment before the House which requires a court to be satisfied that there is no possibility of reconciliation before it can grant a decree of divorce. We are dealing with the Constitution of the State and not simply with rules of court. In addition to that, as I have said, the provision before us requires the court to be satisfied that there is no possibility of reconciliation rather than simply enabling it to adjourn proceedings in order to find out if there is a possibility. It is a much stonger provision and one that adds to the restrictive nature of the constitutional amendment proposed here.
I have listened very carefully to the arguments that have been made and while I agree, as I said at the outset of this discussion, with the direction of Deputy Harney's concern I do not agree with the method that she proposes. I prefer the word "failure" in this context to the word "breakdown" whether or not breakdown is accompanied by another qualification. I know that basically Deputy Andrews agrees with the line that I am taking.
I would like to thank the Minister for clarifying a number of points. When I make reference to what happens in Britain or elsewhere I am no expert. I am here as a public representative representing ordinary plain people who want to know what the implications of these proposed changes will be. We do not have these words in practice in Ireland but we can see them in practice elsewhere. It is for this reason that I look, in relation to such words, to what is happening in Britain or in some of other jurisdiction.
I agree with the Minister that a margin of discretion must be left to the courts. I do not think anybody would disagree with that. The courts and the Judiciary will want to know from this House and from the people if they are to pass the measure what kind of riding instructions they are to have. They too are ordinary people but with extraordinary experience and knowledge of the use of words, of language and of the application of the Constitution in so many different circumstances.
Are we working in a different way?
We are working at a different end of the whole spectrum. It is fair to say that Members of the House trust the Judiciary fully in relation to their independent character and their integrity. That is not the question that arises here. It is a question of the words which we leave them to work with. They will have to take the ordinary interpretation of these words. There is no question of anyone here mistrusting the Judiciary in any way.
The Minister clarified, as far as he could, that if one partner believes that there is a failure then that is a matter for the court to decide. It comes back to the position in relation to reconciliation. If one partner says that there is no possibility of reconciliation the Minister agreed that that would mean that there is not much prospect of reconciliation in practice. Likewise, this applies in relation to the whole question of failure. In relation to the two partners agreeing to this, the Minister seems to accept that the marriage has already failed and the circumstances in so far as the children are concerned will have to be faced up to.
The Minister said that the court must be satisfied that there is no possibility of reconciliation. It is important to recognise that the reasonable possibility of reconciliation only occurs when divorce is being decided on. We have gone through the other questions of the failure of the marriage. It has been decided that it has failed for a continuous period or for periods amounting to at least five years and that there is no prospect of a reconciliation. At that late stage, when a decision is about to be made, it probably will not be very difficult for the member of the Judiciary or for the court to decide that there is little possible hope of reconciliation. It is at that late stage that the question would arise, and I cannot see it being particularly effective in preventing a final breakdown because reconciliation, if it is to start, must start early, before mental attitudes are established by the exchange of solicitors' letters.
That may be, and that is why we are making the provision in legislation, as I have said.
That is very important. That provision could be made today or we could have done it six months ago after the committee had reported.
Or five or six years ago.
Let us just stick to the time since the committee completed their work. I am trying to relate this to the impact of three conditions attached to the failure of a marriage. Breakdown, on its own, is subjective and provides little protection for the existing family. I suggested that at the outset. The word "failure" is subjective and members of the Judiciary would be forced to consider the usage of the day in the dictionary. During the debate today the Minister was given two definitions which have shown that "failure" is not a final determination. The Minister is caught in an awkward spot——
I do not like Deputy Woods to use phrases like that when I am not caught in an awkward spot. I do not think it is an awkward spot but a sensible way to put it.
I do not think there is finality in the word. There does not appear to be a clear definition of the word available to us. It is clear from what the Minister has said that there is no provision in relation to any period of separation in the proposed constitutional amendment. The Minister may wish to introduce a period of separation later under paragraph (iv), but even if he did so in legislation there is no guarantee that the period would not be reduced later. This could happen even if the period was five years. Under paragraph (iv) the only thing the Minister can do is to add in an extra condition.
It seems quite clear that you could not have unilateral divorce under the term "failure" which, in itself, is a low threshold as it is being used. I appreciate what Deputy Harney said about the term "failure" implying a low status to the family in which marriage has failed. That is an important point because the word "failure" would record the fact that the family had failed. The Minister, by way of supplementary condition, could add in a five year separation, but he cannot supersede what will be in the Constitution, the use of the word "failure". Anything the Minister puts into section 4 cannot redefine that word unless the Minister were to include a new section saying that the law may define "failure", which will have to be considered on its own as it stands.
This constitutional amendment will permit divorce solely on the conditions in the amendment and it will then depend on the Oireachtas as to what additional conditions can be added under paragraph (iv). If the Minister feels it is necessary to have a five year separation clause it would be open to him to include it in the amendment so as to have certainty. It seems to us that the Minister would have to add such a condition if he is to provide the restrictive element which the majority of people would like to see — some definite period of separation which could not be varied readily subsequently. At the moment that is not part of the amendment and if it were brought before the House subsequently it might be varied and without constitutional certainty. In the public mind the two things have been joined.
They are some of the problems attached to the use of "failure" which seem to have arisen during the debate. There are many other factors which we can discuss later. Looking at the two words "failure" and "breakdown", there is no particular merit in "breakdown" on its own as compared with "failure". I do not think either will provide real protection for the existing family.
Deputy Woods claims that the concept of failure is subjective. I am bound to say — and I hope the Chair will not think me provocative — that the Deputy does not seem to have considered what I said earlier or even to have weighed it in the balance. I am not so thin skinned that personally that would worry me unduly, but for the purpose of the debate it does worry me. I made the point — I have not heard anything from Deputy Woods to challenge or refute it — that we are not talking in the proposed amendment about a subjective judgment being made by either or both of the parties to a marriage. We are putting an obligation on a court to be satisfied that a marriage has failed.
I fully appreciate that.
If the Deputy fully appreciates that he should not continue to claim that the concept of failure is a subjective one. What we are doing here is requiring a court to be satisfied on the basis of the evidence presented to it that there has been a failure. Deputy Woods now seems to agree that we are not talking about a purely subjective criterion.
Deputy Woods mentioned the question of reconciliation. I interjected and I beg the pardon of the Chair for being disorderly. I was trying to be helpful in a slightly disorderly manner. In the legislation proposed, and which I confidently expect to bring before the House, we are proposing that the question of reconciliation would have been looked at by the court at an earlier stage, when the court is looking at the matter of a judicial separation or a separation agreement. That would be a necessary precursor to an application for a decree of divorce. I agree with the concern of Deputy Woods about the necessity to ensure that possibilities for reconciliation are given a chance and are properly tried out. I should imagine all of us share that concern. My point is that we will make provision in the stages that precede divorce for finding out if there is a possibility of reconciliation.
Deputy Woods came back to the question of whether legislative provisions can supersede what is in the draft amendment before the House. He accepts that there cannot be any derogation in legislation from the requirement that the court be satisfied that there has been a failure for five years. That is beyond argument once it is written into the Constitution and no law or court can derogate from that and if we add further conditions to it they can only be conditions that are more restrictive. Deputy Woods claims that we have provided for what he called a low threshold for divorce. I am not quite sure what he means by that.
In the Constitution.
A low threshold would seem to indicate that the Deputy believes it would be relatively easy to get a decree of divorce under the provisions we have here. We have had a long discussion this evening about the meaning of the word "failure". Obviously, it is something the courts will have to think about very carefully in any case that comes before them. It will not be easy to decide that there has been a failure and the courts will have to look at these other conditions and the proviso. Adding them together in their cumulative effect, I cannot see how anyone can pretend that represents a low threshold, that it will be easy to get a divorce or that it is a facility that will be readily available. Deputy Woods went on to say that there is no guarantee that the period of separation will not be reduced at a later stage because, as he points out, separation is provided for in the legislation. Failure of the marriage is provided for here.
As I have said, the legislative provisions can only add further conditions to the amendment. We are talking about a provision that will require a court to be satisfied that a marriage has failed for five years or for periods amounting to five years. No matter what is in the legislation afterwards, that requirement to satisfy the court that there has been a failure for five years subsists. That is what the Constitution will provide. If we provide for anything else in legislation it can only be either to give legislative effect to what is in the Constitution or to add extra conditions to what is in the Constitution. My belief is that the provisions we have set out are very restrictive and will be difficult to demonstrate in any given case. To the extent that legislation adds to those conditions — I have indicated it is the Government's intention to add other conditions to those included here — the effect will be to make the whole complex of constitutional and legislative provisions more restrictive. In my view it is wrong to suggest this represents a low threshold.
I said that about the constitutional amendment.
Even the constitutional amendment cannot be said to provide for a low threshold. Deputy Woods suggested that if I wanted to provide that divorce would be available after five years of separation it was open to me to put that in the proposed amendment. I have to say that if Deputy Woods wanted to provide for that or for any other period of separation equally it was open to him to put down an amendment to that effect. He has chosen not to do so and I fully respect his right and his reason for not doing so. I caution against going too far with that line because that would suggest to me that what might be in mind in making such a provision would be that we would require separation only as a test for divorce. From the tenor of the remarks made here this evening, I do not think anyone here would be satisfied to provide for divorce only on the test of separation. I do not think that is what Deputy Woods or Deputy Harney had in mind. It certainly is not what the Government or what I have in mind.
Deputy Woods concluded by saying he sees no merit in the word "breakdown" as against "failure". I must accept that is his view. I contend at the very least that if that is his point of view then he can see no particular merit in the concept of irretrievable breakdown as against the provision here. As I have said on many occasions in this debate, we provide that the court must be satisfied that the marriage has failed and, among other conditions, that there is no reasonable possibility of reconciliation between the parties. I accept fully the caveat of Deputy Haughey about using the language of the man in the street in these debates but occasionally it may provide a little side-light to help us to clarify the debate. Putting those two things, failure and no reasonable possibility of reconciliation, into ordinary man's language, that seems to mean irremediable failure. Personally I believe that irremediable failure is a stronger notion or concept than irretrievable breakdown. If Deputy Woods has the concern which he has been illustrating during the course of the discussion he will join with me in rejecting the amendment.
This discussion has gone on for some time as a result of the attempt by Deputy Harney to substitute the word "breakdown" for "failure". As the debate has progressed we have reached something of a consensus. I want to reiterate that we are not concerned with legislation which may or may not be introduced afterwards or any provisions in it. In this debate we can only concern ourselves with the words of the amendment as they will go before the people. That is the only thing that will last in the Constitution. Any other legislation or provisions are of no relevance and cannot be adduced in support of this wording. We have to look at these four steps as they are. At this stage we are concentrating on paragraph (i) because Deputy Harney's amendment deals with paragraph (i). Deputy Harney has a second amendment which deals with paragraph (iii). When we come to that we can discuss paragraph (iii) on the basis of the amendment which has been tabled. We will have something to say about it. At this stage we are only concerned with whether or not the word "failed" is adequate. It has to be adequate to satisfy the section of the people who will not vote for this change in the Constitution unless it is confined to totally failed, irretrievable, irremediable breakdown of marriage. Does the word "failed" here satisfy those people who will only accept divorce in those very strict limited circumstances?
I put it to the Minister that there is now a consensus in this House against him. Deputy Mervyn Taylor agrees that "failed" has not the element of finality that he suggests. The Taoiseach said it had finality and the Minister quoted the Taoiseach with approval this afternoon as indicating that the word "failed" has this quality of finality. Deputy Taylor does not agree and accepts our suggestion that failure can be a temporary thing and is not necessarily irrevocable, irretrievable, final, dead breakdown. In the remarks he made before we adjourned this debate for Private Members' Business, Deputy O'Malley agreed that failure does not have this connotation inherent in it in the constitutional context. I have to put it to the Minister, dealing only with paragraph (i), that the majority of this House has expressed itself as clearly accepting that failure does not necessarily have finality as a quality. Failure in this context does not involve total, complete and final breakdown. If we have established that, it has made this whole debate worthwhile. It must give the Minister pause as to the exact status of this amendment which he is putting before us. The Minister, in all good faith, will probably claim that failure does have this finality about it, although when he was answering Deputy Woods just now he had to introduce the phrase "irremediable failure". He was not prepared to let "failure" stand on its own two legs, as it were.
We will deal with paragraph (iii) when we come to it. These are the words the court will be examining and satisfying themselves about. It is pretty well established as a result of this fairly lengthy but well-conducted debate that the phrase "when marriage has failed" does not mean that the court must be satisfied that the marriage is ended beyond any possibility of ever putting it back together again. That is the conclusion of the majority of this House at this stage of the debate. Deputy Harney has another amendment which will bring us on to paragraph (iii) and we can then look at exactly what paragraph (iii) contributes to the situation. I suggest that whatever advantage "breakdown" might have as a word or "irretrievable breakdown" might have as a phrase, the word "failure" standing on its own in paragraph (i) does not mean that a court can dissolve a marriage only when that marriage is finally beyond any possibility of redemption and has broken down.
The discussion has been somewhat circuitous. I accept that this amendment is very important and that it is necessary to tease it out. If I would introduce a slightly less serious note, we have gone round in so many circles that one suspects the only thing that Deputy Haughey would regard as having finality in this context is to replace the word "failed" by "death" which has a final ring to it. I find it very difficult to come back to reality in the context of the discussion that has taken place. Deputy Haughey said earlier that "failure" or "breakdown" on their own do not mean that marriage has gone beyond repair. I think I am quoting him accurately in saying that. This was also the mainstay of his contribution which has just concluded. That is quite true —"failure" or "breakdown" on their own do not mean that a marriage has gone beyond repair. In so far as Deputy Haughey says there is a consensus about this point, the Minister is part of that consensus.
We keep coming back to the issue that this amendment is not about taking out one word and parsing and analysing in a vacuum. The failure we are talking about is a marriage which has failed in the context of a couple in respect of whom there is no reasonable possibility of reconciliation. This has been said before and we have gone around in circles saying this. No reasonable legal interpretation could possibly look at the word "failure" in isolation. I do not wish any acrimony to be brought into this debate. We have had a constructive discussion. However, it would seem to me that there is no possible legal method of interpreting this provision by taking the word "failure" in isolation and interpreting it in the way that is being suggested. Anyone with any experience of the interpretation of legislation and the manner in which the courts operate would accept that this provision stands not in isolation but with four or five prescribed conditions, each of which has to be complied with before divorce can be granted.
I can only, at this stage, raise a doubt in my mind as to why the Deputies opposite persist in this type of artificial approach or interpretation. I do not mean that in a contentious way. When I talk about artificial I am not saying that there is not an argument being put forward. By artificial I mean an artificial method of legal interpretation that does not bear analysis. Deputy Haughey and Deputy Woods referred to the fact that this provision is clearly designed to reassure people who recognise the need for divorce but wish it to be restrictive and that this provision is designed to reassure them that it will be so. A provision which requires proof of failure, proof that there is no reasonable possibility of reconciliation and proof that a marriage has failed for five years would, I have no doubt be seen by the majority of people outside this House as being extremely restrictive. The only way it could not be seen to be restrictive is if we forgot about the need to prove five years' failure, about the need to prove no reasonable possibility of reconciliation and about the fact that the court would have objectively to decide these issues, and if we constantly harped on one particular section of this provision which, when taken in isolation, would provide a restricted divorce jurisdiction. But we cannot do that because the whole thing is a unity; it is a whole; it all stands together. None of this stands in isolation. So, what I am concerned about is that in dealing with this in what appears to be a constructive discussion, there is an attempt, either by mistake or otherwise, to create the perception outside this House, for whatever reason, that this is not a restrictive measure. I do not understand why that would be the case in the context of a provision such as this which is clearly restrictive, which is clearly limited and which clearly does meet the criteria set by many people who want to see a restrictive form of divorce, divorce available in limited circumstances, because this is limited circumstances, it is a divorce limited to a great degree, to the extent that there is a need to prove five year' marital failure, that a marriage has not functioned, has not been viable for five years. We need to cut through the legal jargon and remember what it is we are talking about. We are talking about two people whose marital relationship has ceased to exist, two people who are married in nothing but name for a period of five years or more, whose marriage has become an empty shell. For them that five year period will be a period of great deal of pain and stress and the stress for many of them will be aggravated by the fact that they will be constrained in law into a marriage that has failed for a minimum of five years after failure has occurred. They will accept it on the basis of a change in the Constitution extending to them the possibility of a second marriage, something that is not a possibility today.
But let us not look at this as if it is some sort of flimsy provision that has to impact on the lives of people. This provision will be seen by many people who are the casualties and victims of broken marriages as being harsh. Some may see it as vindictive, as requiring them to serve a sort of marital prison sentence due to the fact that their marriage has collapsed. But for those people who anxious and concerned that divorce be restrictive, that it should not be easy, that it should be available only in limited circumstances, in so prescribing these conditions, it meets their worries, and I think that view would be held by practically everybody in this House who favours change. No one is advocating divorce on demand or easy divorce.
I am concerned as to why this presentation is still being made at this stage. I do not believe it is sufficient to say that when we come to paragraph (iii) in relation to the specific amendment proposed to it we can then dismiss it because we are not talking about a constitutional article with a series of sub-articles. We are talking about a single article which states a number of conditions each of which will have equal status and validity which must be complied with before a court could pronounce a decree of divorce. It is not a reasonable approach by way of legal interpretation and it is not one that I would anticipate an Irish court, the High Court or the Supreme Court or the Family Court taking, simply isolating the word "failed" and looking at it without looking at the totality of the article within which it exists. The point is worth making that if this is a serious point that Members opposite are making, one must ask why did they not table some form of amendment. Again it is their right not to do that but if it was serious point of contention on the part of Deputy Haughey and Deputy Woods, one would have expected that there might have been a debate that would have involved looking at an alternative form of wording that might be proposed by the party opposite. Of course we have had Deputy Andrews' contribution in which he has expressed the view that as far as he is concerned this proposal is adequate and fits the bill.
I want to turn to one other issue. Deputy Woods coined a phrase, and he is very good at coining these phrases and they appear to be meaningful until one examines their content. He said that this provision will provide for unilateral divorce. That is interesting terminology. It is the type of terminology that has been thrown up. Fortunately it has not appeared in today's debate but it was used last week either by accident or deliberately, to create worry or alarm outside this House on the part of people who are concerned about this issue. I want to analyse what is meant by unilateral divorce because the reality is in many instances currently that court proceedings are brought unilaterally, when a marriage breaks down. The 27-year-old wife who is having the hell beaten out of her by her husband, who has been viciously assaulted on a regular basis, unilaterally applies to the courts currently for a barring order for protection. She may unilaterally currently bring judicial separation proceedings to get a separation decree on the grounds of cruelty. She will not wait until the husband who is beating her gives his permission to go to court to seek protection. So, if we were to assume this provision would succeed and that the wife would go ahead and get her decree of separation on the grounds of cruelty, and the five year period of separation will pass, she may indeed unilaterally apply for a divorce, seek an entitlement to remarry. The husband who is beating her might take the view that she should not be allowed to remarry, that she should be constrained into a relationship with him, albeit the courts have granted a decree of separation, because it suits him and he does not want her to remarry. Is that unilateral divorce?
In the opinion polls that have been done on this issue in excess of 70 per cent of the people in this country believe that a wife who is being violently treated in that way should have the possibility of a second marriage extended to her. That is the unilateral divorce law. A husband may not agree to it. The courts may take the view that the marriage has failed and that the differences are irreconcilable and that indeed it would be monstrous to require that wife to again live with her husband and may permit her to obtain a divorce. What else could be described as a unilateral divorce? What about the young husband left to care for three children, whose wife leaves him and goes to live with another man? She lives with that other man permanently but for some perverse reason she may decide she wishes to maintain the legal tie between herself and her husband even though she is living with that other man. The husband currently could go to court alleging adultery and getting his decree of separation against his wife. Under this provision if it succeeds, after separation for five years the husband could unilaterally apply to the courts for a divorce and the courts would look at the different aspects of failure, whether the differences have been there for five years or more, whether the differences are irreconcilable, and the husband would be granted a divorce which would extend to him the possibility of a second marriage. Is anybody suggesting in this context that that husband should have to get the agreement of the wife who is permanently living in adultery in order to obtain a divorce?
If one is talking about the views, as referred to by Deputy Haughey, of people outside this House and their willingness to accept a restrictive form of divorce, in excess of 70 per cent of the people in a succession of polls going back to 1977 held the view that where either a husband or wife was left by their partner who is living permanently in adultery with someone else, that husband or wife should be entitled to seek a divorce. What about the wife left in Dublin with three or four children who is deserted by the husband, who is in Cork, Wexford or simply cannot be found? Has the wife the right to apply unilaterally for the decree of divorce, or must she wait for 15, 20 or 30 years until the husband appears and says he finally agrees and they can have consensual divorce? This type of terminology, unilateral divorce in this context, is being thrown out without being fully examined as to what is meant by it.
There are 5,000 couples each year whose marital difficulties being them into the court — District, Circuit or High Court. When court proceedings are initiated, they are initiated unilaterally by either the husband or the wife, and in the overwhelming majority of cases by the wife. This terminology about unilateral divorce is not meaningful to the discussion, and I do not think it gets us anywhere to talk in those terms.
In the context of Deputy Haughey's contribution earlier today, he emphasises — and I agree entirely with this aspect of his contribution — that there are certain types of words and phrases which can be found in legislation and may be in the Constitution, which can be analysed to indicate the type of approach courts should take. He gave the classical legal type of area that it was a matter of great contention in litigation in this country, originally arising under the Offences against the State Act, where the difference is between someone being of the opinion that something was the case and someone having to be satisfied that something was the case. It is worth repeating that the phrase that a court must be satisfied that a series of conditions had been complied with before the court could make an order — which is what is prescribed within this provision — is regarded as the most onerous judicial means of assessing whether an order can be made that can be imposed on a judge. The judge must be satisfied that something is the case, not simply that he is of the opinion.
That emphasises how this provision copperfastens two objectives, the objective of extending the possibility of remarriage to the casualties of broken marriages, a possibility which is not there at the moment, while providing a guarantee to those who have a very real and genuine concern that this legislation will not provide for easy divorce or for divorce on demand but will provide for divorce solely in limited and restrictive circumstances and will provide the type of constitutional mechanism which ensures that the legislation which is to be enacted in this area will meet the types of conditions the majority of the people believe are desirable.
I am sorry if Deputy Haughey took my earlier remarks as being personalised or as being a personalised attack. On the contrary, my comments were to emphasise the importance of Deputy Haughey's views in this matter. My impression from his comments is that he is sincerely trying to tease out a form of wording which would be acceptable to the majority of our people who have indicated in polls that they would accept divorce under certain restrictive circumstances. That was the point I was trying to put across.
Deputy Haughey said there is a consensus being reached on this question of "failed", meaning a consensus that "failed" is not a satisfactory word. However, there is not any consensus on what would be a satisfactory word. If we could get wording which was satisfactory to Deputy Haughey it would be of great importance to the people in any forthcoming referendum. After all, in the latest opinion polls he represents the views of 50 per cent of the voters. He is a person of some importance in this debate and that was the only reason that I referred specifically to him.
My view of the word "failed" is the opposite to Deputy Haughey's. I believe it will be too difficult to prove to a court that a marriage has failed; Deputy Haughey feels it will be too easy. This indicates the enormous personal differences people have about what the word "failed" means. Earlier I gave my views about middle aged conservative judges on the bench and the Minister neatly returned that remark to myself. He said it appeared I referred to myself; I have to contest that because I am way past being middle aged. As regards being conservative——
I am not making the Deputy an offer.
——"conservative" means protecting, preserving and conserving the existing order, which is one of the things judges on the bench feel they are specifically put there to do. I see my job as trying fundamentally to change the existing order. In my view the judges may be difficult to convince that a marriage has failed. A sociologist or a psychologist in a family court would definitely take a completely different view of failure from that of a legal man. I am worried that it will be very difficult to prove before these courts that a marriage has failed.
I agree entirely with Deputy Shatter that any difficulty that Deputy Haughey or Deputy Woods might have in regard to the word "failed" in the section not being strong enough or final enough is covered in the later paragraphs, particularly in paragraph (iii) in which you have to prove that there is no reasonable possibility of a reconciliation, which is very difficult to prove to a court. My difficulty in this whole amendment to the Constitution is that I feel that only a very small proportion of those whom this amendment is set down to help will be helped by the amendment before us, a view completely opposite to that put forward by Deputy Woods, which seems to be that once this is done there will be divorce on demand, that everybody will be getting a divorce. One would think that this is making divorce compulsory and that you will have to queue up looking for your divorce, from the arguments of many people who are presenting the difficulties here.
This is a very restrictive bar on families where marriages have irretrievably broken down. To prove failure, continued failure and no possibility of reconciliation would be very difficult. I ask the Minister to address his mind to this point. What is his view of the interpretation of failure, of a marriage which has failed? What is his view of the interpretation which judges on the bench, who are put there for a legal purpose, will take of marriage failure as against the view which the Minister has in his mind, the view which a sociologist would take of marriage failure? That is where I see the difficulty in this.
I do not know whether "breakdown" would be a better word. It is a simpler word to the layman, but I do not know what "breakdown" would mean to the legal mind. It seemed at the beginning of this debate that "breakdown" was a better word, being simpler to explain, whereas "failed" has wider connotations and is much more difficult to explain to different people. To a person of very liberal views it might be easy to explain and to another person it might be much more difficult to explain. There is no specific explanation. That is my only worry about it. I ask the Minister to satisfy me, from the view of judges in the past and his view of judges who will be on the courts, on how he can see them interpreting that a marriage has failed and what kind of evidence would be required to prove that a marriage has failed, apart from separation.
I am not sure that we advanced all that far since this afternoon when we started to discuss the difference between "failed" and "breakdown". I was surprised when listening to Deputy Haughey's last contribution because he exhorted us to consider paragraph (iii) of the proposed Article of the Constitution when we came to it. It cannot be considered a separate part because this is not just part of the one Article, it is part of the one sentence. For people to suggest here that failure is left there without a means of definition is untrue. "Failed" is a word in a sentence which includes several other characteristics that define specifically what failure is. I have listened to most of the debate today and I am still of the opinion that there is not a great deal of difference between "breakdown" and "failure", provided the other words remain as they are. For example, consider the words "irretrievable breakdown". You could have irretrievable breakdown of a marriage after six months. Do Deputy Woods and Deputy Haughey hold the position that one substitutes "irretrievable breakdown", takes everything else and leaves it to a judge to satisfy himself that irretrievable breakdown of a marriage has occurred, notwithstanding the fact that the couple have been married for only a year or two years? It seems that failure, if it lasts for a period of five years and if there is no reasonable possibility of reconciliation, is a far more stern test of a marriage not working.
The whole thinking behind the effects of all sides in this debate today, well intentioned though it may be, is slightly unreal because it is crediting our Judiciary with very little common sense. Judges dealing with marriage breakdown cases particularly, even though they have not had the benefit of the professional expertise and the facilities that we envisage giving them now in the family courts, have generally conducted themselves very well in this area, and I have every trust in their judgment. I am not convinced that "irretrievable breakdown" as a description on its own is a sterner test of failure over a period of five years with no reasonable possibility of reconciliation.
The main reasons I rise to my feet at this stage are related to Deputy Woods' introduction again of the phrase "unilateral divorce". I agree very much with Deputy Shatter in dealing with Deputy Woods' contribution with which we have the difficulty that we are not really sure, if one judges by Deputy Woods' contribution of last week or any contribution of his that I have heard today, whether he would recommend any type of divorce or any right to remarry for anybody in this country. I indicated last week that I believed that divorce was a civil right. That is my view and I may be right or wrong in that I complimented Deputy Flynn here last night for being clear about his position. He is against divorce. He does not believe that people should have the right to remarry in any circumstances. I admire his candour. On our side of the House Deputy Glenn, Deputy Flanagan and others have signalled clearly that they are against giving anybody who has been married the right to remarry. That is fair. I understand their position and I can deal with that.
Deputy Woods has not given us the benefit of his thoughts on that. Were he to do so it might be easier to tease out some of the problems he has at the moment. His suggestion that this amendment will permit the possibility of acquiring the right to obtain "a unilateral divorce"— whatever that means — is very difficult to understand. In his Second Stage contribution last week he quoted, I understood with considerable credit to the sources, the Law Reform Commission and the Oireachtas Committee on Marriage Breakdown on the subject of changing the system of determining a person's entitlement to judicial separation from fault to no fault system. He said that the Law Reform Commission recommended in 1983 that the grounds on which judicial separations may be granted should be extended to include desertion, breakdown of marriage and separation for a set period of time. That is precisely what he complains of on this occasion, that we are somehow proposing to give the right to a spouse to apply for and obtain, by his or her unilateral action only, the permission to remarry.
Does Deputy Woods approve of a change in our laws of judicial separation which will permit one person to move and force the other spouse out of home, to division of property or whatever but will not grant that person on the same grounds the right to remarry? I ask Deputy Woods, so that we might have the benefit of his views on the subject and know precisely what we are talking about here in this debate, if that is what he means. In the debate last week he referred again, as I understood it with some agreement and approval, to the Oireachtas Joint Committee when he said that in their report over a year ago they gave their proposal that a decree of judicial separation should be granted if the court is satisfied that the marriage has irretrievably broken down. They considered that the one overall ground for granting the decree should be irretrievable breakdown. Of course, irretrievable breakdown is not a fault based system either, albeit it is only in relation to somebody obtaining a judicial separation. Of its nature that is unilateral.
Again I challenge Deputy Woods to say whether he believes that a spouse in a marriage which has run into difficulties should have the right to apply to the court for a decree of judicial separation but not to obtain a divorce decree? I appeal to Deputy Woods to initiate his position in this regard. I studied his Second Stage speech and listened to most of his contributions today and I am still at a loss to understand his position as to whether anybody, because of marriage breakdown, should ever be given the right by the courts to remarry. He wound up his remarks on that part of his contribution last week by saying that these recommendations were aimed at updating the law on judicial separation and ensuring that the arrangements for a couple who separate and their children, would be as helpful and supportive as they could possibly be. He is right in his analysis that the change in the fault system to a no fault system is to bring about a position whereby these proceedings — judicial separation or divorce in a very full sense — would be changed, as in all other jurisdictions of which I am aware, so as to get away from the accusatorial system and to bring about a situation where, from the time a marriage runs into difficulties to the ultimate date when a decree for divorce is granted, the possibility of reconciliation is not excluded and circumstances are conducive to the parties remaining on the best terms possible.
Deputy Woods — I say this with every respect as this has been a most constructive debate — was slightly mischievous in throwing in a remark about unilateral divorce which is inconsistent with his position as outlined on Second Stage last week. It is also inconsistent with all modern thinking on any form of judicial separation or divorce legislation in the modern world. It is done, not to give people the right to get anything on demand but to bring about proceedings which will not exclude, inhibit or place obstacles in the course of the possibility of reconciliation. If Deputy Woods is of the view, as he said in the House last week, that a couple should have the right to move unilaterally for judicial separation, why does he feel that different grounds should apply for divorce? If a couple have obtained a judicial separation, are there any circumstances in which Deputy Woods would allow a law giving either or both parties in the marriage the right to remarry? That is the kernel of this issue and I do not understand his position.
Deputy Shatter called for the need to bring the debate back to reality but that is a little unfair on those who have been debating this issue for the past couple of hours. Even if he does not like some of the things he heard, I am certain that when these matters come to court he and others will have great fun teasing out this and other aspects of the proposed legislation. I can foresee a situation where a lawyer representing one party to a marriage who was not in favour of divorce or the dissolution of marriage would argue that there was little likelihood of reconciliation because the marriage had broken down for a period of five years or more but that the marriage had not failed because there were three lovely children, they went on holidays together once a year and there was a reasonable level of communication between the two parties. Lawyers will argue on that basis.
I am not against allowing the courts flexibility — there would be no need for courts if we did not have some flexibility in our laws — but I am against allowing a judge to have total flexibility in deciding what a failed marriage is because nobody here has said very clearly what they mean by a failed marriage. Is it a marriage where there are no children or which has not been consummated? Is it a marriage where people have not lived together for a number of years or where a couple live in the same house but do not have much communication between them? In so far as anyone can have any degree of certainty, "irretrievable" and "total" are better words than "final" because you can never say that something has finally ended, particularly in regard to human relationships.
Deputy Molony referred to the fact that we have not got very far in the debate and that is true because the Minister is not prepared to accept any changes. That is regrettable because, while we are all trying to achieve the same end results, it is extremely important throughout this campaign that those of us who agree on the fundamentals should not separate or divide on particular words. For that reason I would not be keen to call for a vote because perhaps only five or seven people would vote in favour of my amendment. I do not want to add any fuel to what will be a very divisive campaign or to have any unnecessary divisions. However, it is fair to say that there has been a consensus throughout the House today from all sides about the need to be a little clearer about what we are talking about and the unsatisfactory nature of the word "failed".
It is unfair on the parties in the marriage, especially when a marriage has broken down because of the activities of one of the partners rather than as a result of the activities of both partners — for example, in cases where there is violence, desertion or a failure on the part of one party to fulfil any of the responsibilities of marriage — to describe that marriage as failed, to assume that both parties are, therefore, failures in some sense and that, as Deputy Woods said, the children of the first marriage will have to live with this stigma. It would be unwise not to accept that it is much better to recognise that "irretrievable" or "total breakdown" is a much more objective term than the word "failure". Indeed, many judges could argue that a marriage which has irretrievably broken down because of violence or because people were apart for many years has not really failed and that the couple should get together and try to make a success of it. I can foresee a situation of two couples, in very similar circumstances, one of whom going before Judge X could have their marriage dissolved and divorce granted and the other couple, in almost identical circumstances, appear before Judge Y who could decide that it was not a failure despite the fact that the circumstances are the same. The concept of failure is a subjective concept and it leaves the parties to that marriage, the children of that marriage and the friends of the people involved with a certain stigma attached to them although, as I said earlier, in recent years, particularly in our education system, we are at pains to try to get away from the concept of failure. We believe it is a concept that people should not have to live with. If that is the case in relation to examinations in education, then surely it is the case in relation to marriage and the family. It is more important in the context of marriage and the family.
Since we are all trying to do the same thing I think the Minister is being a little unreasonable in his attitude. When these proposals were produced the Taoiseach said any reasonable effort to amend them in the Dáil or the Seanad would be accepted and in that regard I should like to ask the Minister to bear in mind the views expressed on all sides of the House. Perhaps the Minister would prefer to discuss the matter with his advisers but between now and Report Stage he should be in a position to accept an amendment along the lines I have suggested. I am not fussy whether the word "irretrievable" or "total" is used before the word "breakdown". I accept, as Deputy Haughey said, that it needs some further clarification but I would prefer if we went down the road of breakdown rather than continuing to go on with this business of failure.
I do not wish to prolong this part of the debate unnecessarily but I should like to deal with a number of points. What Deputy Shatter and Deputy Molony said does not require any answer from me. I regard what they said as statements. Deputy Mac Giolla asked about the specific meaning of the word "failed". One of the reasons he is interested in that is that he feels it might be harder to prove failure than to prove breakdown. That is precisely my point; it is a more stringent test than breakdown. In my view that stringency is more in keeping with the view which has been referred to by a number of Members, notably Deputy Haughey, as being the view of a majority of people who have given an opinion on this matter. A more stringent test is more in keeping with what is the consensus view among our population and, therefore, is the more appropriate one to put into the constitutional amendment. I do not claim any particular insight or wisdom in making that statement.
For the record I should like to point out that I did not say a majority of the people. What I said was a majority of those who would be in favour of divorce.
I am going a little further in that. I have said a majority of those who have been sampled on the issue.
The Minister is attributing that to me.
No, I am attributing to the Deputy, correctly in my view, a reference to those people and a reference to the view they appear to hold on the basis of the polls that have been carried out.
My argument was that the majority of those who would have stated they were in favour of divorce would only be in favour of it in very stringent final breakdown circumstances. I wanted to make my position clear on that.
I appreciate that and I have no difficulty whatever in accepting that this is Deputy Haughey's position. I do not have any difficulty in accepting, on the basis of the polls that have been carried out, that that would appear to be the position of a majority of people. Equally there is no doubt that a very substantial majority of those who favour divorce in some kind of circumstances favoured it in very restricted circumstances. The burden of my case is that the test of failure as provided for in the proposed amendment is a more stringent test than the test of breakdown whether or not we qualify "breakdown" by "total" or "complete" or whatever word may be applied to it.
I do not think Deputy Harney was being all that fair to her case when she said she was not particularly fussy about the qualification that is applied to it. Deputy Harney is still making the case that she prefers to see breakdown as the basis. She has given the example of a couple with three children who have gone on holidays every year for a period of years and have reasonable communication and says that is not a marriage that one could describe as having failed. I agree with that. Equally it seems to me that it is not a marriage that one could describe as having broken down. I do not think Deputy Harney is making the case that we should describe that kind of case as either a breakdown or a failure. I would not describe it as such and under the provisions in the draft amendment to the Constitution a situation like that would not constitute a case of a failure of marriage, to say nothing about the other criteria.
The notion of breakdown, whether it is irretrievable, complete or anything else, is in my view a less stringent test than failure. If we were to pursue that it is the Government's view, and my view, that we would be pursuing a road that would lead to the granting of the dissolution of marriage on less stringent grounds than would appear to be the kind of grounds the majority which Deputy Haughey and I referred to earlier want.
Deputy Harney felt it was unfair of me not to be prepared to accept any change. I am not setting my face against any change. I have made it clear that I do not agree with the amendment Deputy Harney has proposed, nor would I accept an amendment simply for the sake of accepting a change although I agree with Deputy Harney's concern. On the issues where we do agree we should make that agreement as wide as possible. The reason I do not agree with her proposal is that I believe the concept of breakdown is a less stringent test than the concept of failure. I do not believe the question of irretrievability falls to be discussed in relation to the amendment Deputy Harney has put down because it is dealt with in Part II (iii) in the Bill. I am sorry if Deputy Harney finds that excessively obdurate. The only reason I do not accept the amendment is that I find it does not provide the stringency in the test the Government believe is required.
My comments on failure related to the amendments before the House and I take it we will be dealing with the section proper later.
I have been listening with interest to the debate on this issue for some time and having listened to the exchanges between the Minister and Deputy Harney, it is obvious to me why so much confusion exists in the minds of the public as to what is going on here. It seems very strange that the proponents of divorce — I take it we had a few of them in the Chamber this evening——
Are there not any on the Deputy's own side?
I do not know about that, but I should like to tell the Deputy that a lot of the spurious stuff he was going on with in the Chamber on the last occasion he and I were together proved to be dishonest.
The Deputy will have to explain himself.
I did not hear Deputy Molony making an apology to the Leader of our party concerning the matter.
The Deputy will have to explain himself.
Deputy Molony knows well what I am talking about.
I said nothing that was not entirely truthful.
The Deputy made great play on the last occasion, in the hope that he could bring confrontation into the day's business, with certain references to the Leader of our party and the reason why he was not in the House at the time. I put it to Deputy Molony that he had the story all wrong. Indeed, he told me on that occasion that he would be very pleased, if it transpired that what I was telling him was accurate, to withdraw his remarks. But he has not been gracious enough so far to do so. I suppose, in the realms of the kind of fantasy the Deputy spends most of his time debating in this House, he is not going to withdraw anything on this occasion either.
It is interesting to note what is going on here this evening, because the confusion that exists in people's minds as to the intention of the Government on the whole question of this legislation is compounded by the confusion now existing between some of the people who are the proponents of this divorce legislation as being the proper means of dealing with marital breakdown. It seems that the members of the Progressive Democrats are not satisfied that the word "failure" is adequate for their purposes, in simple language, that it is not a good word in this context. That is the only issue that has been decided here this evening — that there is confusion in the minds of those who wish divorce legislation to be introduced here. We are moving legislation for the purpose of seeking a mandate from the people to bring divorce legislation into play in this country. Yet they cannot even agree among themselves. The general public are entitled to be aware of that. Those pushing for divorce are divided on the most fundamental issue of all, as to what wording would be put before the people by way of referendum. If that is not making a nonsense of the whole legislation as it was intended in this House, I do not know what could be more divisive.
There is no divisiveness being perpetrated by Members on this side of the House. We have at least teased out, by a full and lengthy procedure, what is the source of the real divisiveness in the whole issue, which is the fact that the Minister, the Government, some of their backbenchers are at variance with The Workers' Party, the Progressive Democrats, all of those whom they would like to have in their net going forward.
We are at variance with them on everything. Why cannot we be at variance with them on this?
The Deputy spent some time gratuitously attacking us last Sunday.
Would Deputy Flynn please continue?
We are entitled to live, you know.
You will notice, a Leas-Cheann Comhairle, that the only time that The Workers' Party will go to any great length to embarrass us, or castigate us, is outside the House. They are never prepared to challenge the Fianna Fáil Party in here, because they know they will get their answer quickly and swiftly.
Whenever we get a chance to speak.
But they will use whatever mechanism they have for getting some media coverage outside the House. That is their play and has been for some time.
There is another interesting fact I would have to put to Deputy Mary Harney concerning this matter. I have found that she has not been consistent in this debate from the beginning. Again, this evening I find the inconsistency goes right to the kernel, to the core of her position in this debate. We and the general public were led to believe for some considerable time that there was an attitude, a position, being taken by that party in so far as the divorce issue was concerned. That has not been the case. It has been very evident from Deputy Harney's contribution this evening that that position promulgated by her party for some time is not consistent with what will transpire in this House concerning these matters. She stated categorically that she cannot support the Minister's point of view, that the word "failed" constitutes a more stringent test than would the word "breakdown". On the other hand, she is not prepared to put it to the test in the House here. I do not care whether or not she has to stand up alone. Had she the courage of her convictions at least she would follow through on what she has been protesting here for the longest time.
Why did the Deputy not vote for the Labour Party Bill?
I am quite sure I know full well what offends Deputy Mary Harney in so far as this is concerned. She is not prepared to put it to the vote and slips in that little aside in the midst of her last contribution so as to put people on notice that there was no way she was going to embarrass any of the members of her party into coming in here and voting against her. That is what it is all about. That position has been further clarified from her contribution on the last occasion she spoke here when she made a statement, after I had taken her up on it, that her party had changed position over the last couple of weeks when she said that most of the party were for divorce, suggesting of course that there were some who were against divorce. I have no objection whatever to people holding their personal views but I hate the hypocrisy of people trying to promote one point of view out in the countryside, coming in here and not being prepared to follow through on what they had not been promoting for the last couple of months.
As Deputy Molony, who has now taken himself hence, knows full well, my position has always been quite clear on this matter. There is only one problem so far as Deputy Molony's attitude toward my position is concerned — and he is wrong in so far as there are no circumstances whatever in which I would not allow somebody to remarry in this country. The position is as follows. If it is decided by a court of law in this country, after a case of civil nullity being taken, that no marriage existed and if the people who sought that also provided themselves, if they belong to a particular Church, with a corresponding Church annulment, in those circumstances only why would they not be allowed to remarry? There is nothing against them remarrying in those circumstances.
It is not a question of remarriage and the Deputy knows that.
It is an entirely different matter providing divorce legislation allowing people to remarry where an indissoluble, valid marriage had been contracted previously. Deputy Carey should not start up now, because I have already had this argument with him in the Joint Committee on Marriage Breakdown, and he is one of the people who made——
A Leas-Cheann Comhairle, might I make a point of order, with your permission, almost more for the record than for any other reason? So far we have talked more or less within certain degrees of latitude allowed by yourself and the Ceann Comhairle about the amendment before us. Deputy Flynn has been treating us to something of a political analysis that would be more in place on the back pages of one of the yellow or Sunday newspapers. We are now getting into a wider field. I think, a Leas-Cheann Comhairle, that perhaps you should suggest to Deputy Flynn that he trim his sails a little and talk about the amendment.
It has been the established practice of the Minister that, when he gets into a tight corner, he always has a personal go at the Deputy opposite. That is his usual stance.
My usual stance, as I said to the Deputy one day in Loughrea, is that he is the only Member of the House who can look me straight in the teeth and I can assure him that they are nice and sharp.
It is unbecoming of the Minister to make that kind of remark.
I will join the Deputy on the back pages.
I do not propose following the Minister down that cul-de-sac.
The Deputy is far too busy——
As far as I am concerned, the Minister himself in the course of the debate so far has been adding to the confusion that exists in the minds of the electorate. Far from teasing out the matter here and bringing something to a finality, which would be of benefit to the electorate in helping them to make up their minds finally one way of the other on this matter, the Minister has been adding to that confusion. I am satisfied that the Minister had been adding to that confusion for some time even before this debate took place here today. Bearing in mind the way this legislation was framed in the first instance it must be understood — recognising the polls to which the Minister referred himself in the course of his introductory remarks, recognising the fact that the majority of people, it would appear from recent polls, were in favour of divorce in limited circumstances to accommodate that and devise a formula of words that would give the edge to accommodate that poll — that by putting with it a list of proposed Government intentions the Minister hoped to confuse the electorate still further. That is unfair of the Minister because, whether he likes it or not——
That is utter nonsense and the Deputy is doing himself a great dissevice in saying that.
Would the Deputy please adhere to amendments Nos. 1 and 2?
The Deputy is really far more perspicacious than that.
I thank the Minister for his comment in that regard. However, the only question which must be decided by the general public when they go to the polls is whether they are voting for or against divorce. It is not fair to suggest to them otherwise. The Government may pick whatever formula of words they like and issue whatever Government statement of intention they like, but that tends to confuse the issue. The only question the general public wish to have determined is whether they are for or against divorce.
Deputy Flynn is now objecting to giving people information about what is going on.
Please speak on amendment Nos. 1 and 2.
That must be noted for the record.
If the Minister would stop interrupting I could deal with these amendments. He makes great play with the possible difference in interpretation between failure and breakdown. I must agree with the Members who put the point to him that there is no definition of the word "failure" in anything he has said so far. I must make reference to that in so far as the Government statement of intention is concerned. It would have been expected, at least when that word was being used as against any other formula of words and since it was being introduced for the first time by the Government and had not been hinted at or suggested by anybody before, that there would have been a definition. These were 18 months of discussion and consideration of all aspects of marriage breakdown undertaken by the joint committee and the word "failure" was never introduced by any speaker on either side of the divide.
It was a new phraseology and had to be introduced for a particular purpose, other than, as the Minister has said, being a more stringent and better test than if the word "breakdown" were used. It would have been expected that the opportunity would have been taken in the Government statement of intention which accommodates the legislation, to give a definition of the word used. That is a fair and reasonable request to make. But it was not attended to and has not been attended to here this evening. Those who have complained bitterly about the failure to give a suitable definition of the word "failure" have a case made and to be answered. It has not been answered by the Minister.
A considerable length of time was spent by the committee in discussing the pros and cons and the formula of breakdown or irretrievable breakdown. I hope I am quoting him correctly, but I think it was Brian McMahon who said "There is nothing irretrievable absolutely, certainly not this side of the grave." I understand that failure, breakdown, or whatever word is used is nothing more than a formula of words to allow "no fault" divorce to be introduced into this country. The ordinary person in the street sees it like that — as easy divorce in certain circumstances. It is not true to say this is restrictive divorce legislation which is being suggested.
Easy divorce in certain circumstances is a contradiction in terms.
That is exactly what is being applied here.
Far from it.
Would you mind keeping to amendments Nos. 1 and 2, please?
I am giving the interpretation of the Minister's wording as understood outside this House, that is, that it will not be restrictive. He only has to take the experience from the legislatures around us. When they started on the introduction of divorce legislation——
You are going away from the amendments under discussion.
I am talking about the word "failure" as distinct from the word "breakdown". This will not be restrictive legislation. One must look at the evolution of divorce in other jurisdictions which points to the fact that this is very much nondescript and will make for easy divorce being made available in this jurisdiction. I must also make objection to the statement of intention because the Government have made it part and parcel of the introduction of this legislation and there is nothing in that statement which can stand up in law. On Second Stage the Minister spoke of legislation that might be introduced. He indicated the element of doubt which must exist.
The Minister has referred several times——
This is too general, Deputy.
——to the statement of intention and has used it to back up his argument.
We are on amendments Nos. 1 and 2.
Let me make a point for clarification. The use of the word "might" in a speech is perfectly grammatical and does not in any sense convey a question of doubt. As I said in the House, I am totally confident that I shall be bringing in that legislation and the use of a grammatical construction, with which Deputy Flynn should be familiar given his background, cannot be claimed to show any doubt.
I am sure that the Minister will be good at explaining away what he said on Second Stage. I want him to know that on the previous occasion on which I spoke here I tore his Second Stage speech to shreds.
I did not notice it and I listened very carefully to the Deputy.
The Minister might not have, but it might be prescribed reading for him tomorrow morning and he will notice that he was both ambiguous and misleading in many of the reasons he put forward to try to convince us he was doing the right thing in the national interest. There is only one interpretation that I can put on what he said.
You are going back to Second Stage, Deputy. We are now on amendments Nos. 1 and 2. Please stay with them.
Amendments Nos. 1 and 2 must be taken in conjunction with the legislation we have before us. When that legislation was promoted on the Schedule, Part II, in this House, it was with the green page in the Minister's left hand and the statement of Government intentions in his right hand. They were inseparable in so far as the Minister was concerned on the day on which he introduced the legislation. He is now seeking to suggest to me that we must isolate those two items just because it accommodates him on this occasion.
I am not going to accommodate anybody. I am trying to stay within the ambit of the debate, on amendments Nos. 1 and 2.
The phrase of the Minister's is no longer on the same page according to the script which he sent from his office to every public representative no doubt in the hope that it would help to promote the cause. I suppose it was promoting the cause at the expense of the taxpayer, as well.
Information is a precious commodity.
There is only one construction I can put on that part of the Minister's speech where he spoke about divorce legislation that might be enacted. The Minister is suggesting something in the statement of Government intention that might or might not be a fact hereafter. That is the only construction I can put on that.
It is the subjunctive mood. If the Deputy thinks back far enough, he will remember it.
I think I can.
We used to be familiar with it.
Some of the better parts of grammar have died out, unfortunately.
I ask the Minister has a marriage failed if people separate for a period of time and then, for some reason, find it possible to be reconciled? I put the case of an individual saying to me that had divorce legislation been in existence when they contracted their marriage some years previously they would both have been quite willing to become involved in divorce proceedings voluntarily. Some years later they found that matters and circumstances had changed and they were reconciled. They are now perfectly happy and I would have to say to the Minister what a shame it would have been if divorce legislation had been in place and those people had utilised that legislation to part forever more.
What a pity it would be if we, as legislators, were to contribute to bringing about a formula of words which would increase not just the rate of marital breakdown but the number of divorces that might be obtained in the jurisdiction. I suggest to the Minister that it is not an isolated case I am talking about and many marriages in the early stages do have difficult times of adjustment. Couples realise they have a commitment for life and consider it worth while making every effort at conciliation and reconciliation. Many marriages have been saved and subsequently have proved not just to be happy but successful in every other way also. That is the great fear amongst the electorate. If they were to allow divorce legislation to be introduced it might result in an increase in marital breakdown.
It was an extraordinary statement by the Taoiseach at the weekend to suggest otherwise. Subsequently, he might have withdrawn from his stated point of view but it only goes to show again the confused thinking which exists at Government level concerning this matter. My understanding of it is that many of his backbenchers, like Deputy Molony, were so horrified that he should make that statement that they insisted it be withdrawn, at least in part. I take the Minister on good faith here as he is not the type of person who would seek to confuse the electorate. The Minister would like to put them in a position where they would have a clear decision to take in so far as the wording is concerned and that there would be at least unity — at least I would like to see unity — on the side of those who are proposing divorce. That would be preferable in so far as those people are concerned.
What about unity on the side of those who are opposed to it?
Deputy De Rossa has got to understand that what is happening here this evening is that we see a situation evolving where even those on the one side of the issue cannot agree among themselves. We have a very entrenched position by Deputy Harney and we have an equally entrenched position on behalf of the Minister. I regret that is the case.
I believe the basic fundamental question the people have to decide is whether they wish to introduce divorce legislation and whether that would be in the best interests of the family and the country. I believe you cannot legalise divorce without altering radically the whole concept of marriage and the family. I wish we could agree at least on that, that it will result in an altering of the general concept as to what marriage and the family stand for as enshrined in the Constitution. At least, it was clearly stated there. Deputy Dowling and I both agreed on that. Not only did we agree on the fact that it was clearly stated and what the people required and wished the Constitution to mean for them but we also agreed, along with many others, that in no way did we want the thrust of Article 41 changed, irrespective of what happened. That simply stated that we wished the protection and understanding of marriage and the family as laid down in the Constitution would not be altered by anything the Government might do. I have to put to Deputy Dowling and others who supported that point of view so vehemently on the Oireachtas Joint Committee on Marriage Breakdown that they were so entrenched in their views that no way would they ever stand by and see the thrust, meaning and spirit of Article 41 altered to accommodate divorce. I would dearly like to see those people come in and defend the point of view they put forward over that period of 18 months on that committee, which regrettably has not happened.
Finally, I regret that the Minister seems to suggest and presumes to know what the courts' interpretation might be on the word "failure". He must be stating that when he refuses to take on board Deputy Harney's point of view. The Minister goes on to say — he makes a big point of it — that divorce will be very difficult to get. It is very strange that he can make that point, and he certainly makes it by referring to the other matters also — the question of the five year period being involved and the question of a reasonable possibility of reconciliation having being engaged in. One could easily dispose of paragraph (iii) but that is for another day.
Taking the words even at face value, "a reasonable possibility of reconciliation" requires only the exchange of sentiments between two individuals that there is no reasonable chance of reconciliation to accommodate that little item. In so far as the second one is concerned, the question of a period or periods amounting to five years, that is probably in more ways than one the sweetener which was decided on by the Government in the hope that they would get the necessary percentage over the line. I do not see that as being an honest response to what was required. It would have been much more suitable if the Minister had not used the formula of words as laid out in the second part of the Schedule. Even at this late stage the Minister might make some changes and we could see further what he has in mind. He leads us all further down the avenue of confusion by saying that even at this late stage, having told Deputy Harney that he was in no way going to alter his mind, his mind is not fully closed either. I do not understand that talk from the Minister above anybody in the House. He is not that kind of person and has never been. One can say what one likes about him, one can like him or love him, but he has never tried to involve himself in double talk in the House at that level.
That is not double talk.
To say that the Minister cannot accommodate himself in the first instance to any other formula of words which might be put forward by anybody else, and then to say that his mind is not closed on this or any other matter, seems to show that the Minister is not convinced by his own argument.
I do not have a closed mind. I do not like this amendment. If Deputy Flynn had wished to propose about another formula of words, he had the opportunity.
Amendments Nos. 1 and 2, Deputy Flynn, please.
The Minister would at least give me this, that when he was making his explanations to Deputy Woods and the other Deputies I did not engage in any cross-fire with him on any of these matters and I did not seek to be divisive by taunting or teasing him in any way.
I am not teasing.
I can only respond to the formula of words which I have heard him issue and it seems that he is only adding to the confusion by not being prepared to be straight in all these matters. Consequently, I can only say the issue will be seen like that outside and must certainly lead to the public not taking the Government in good faith and to rejecting the amendment.
On a point of order, Deputy Flynn accused me of being dishonest in a contribution I made to the House last week. While he was speaking I fetched the record of what I said last week from the Editor of Debates and to clarify the position——
That is not a point of order.
If I am accused of dishonesty I am entitled to have the allegation withdrawn. What I said last week was that I expressed surprise at Deputy Haughey's absence from the Chamber during what I said was an historic debate. This was a debate in relation to an amendment of the Constitution. I said if there was to be an explanation for it, I believed it should have been offered to the House. I said no more than that. I am reciting a fact and I would advise Deputy Flynn to withdraw the allegation that I was dishonest in any way. A look of injured innocence does not lie too easily or credibly on Deputy Flynn but there was nothing I said last week which was dishonest. I would ask Deputy Flynn to have the grace to withdraw it.
I would like to know from whence Deputy Molony gets the authority to ask me for an explanation for my absence from any debate in this House? This collection of globe-trotters are more often absent from debates than they are present. We had social welfare questions today and the Minister for Social Welfare is in America. I resent that. It is an impertinence.
I cited a fact and no more than that. Look at the record and show me where I am wrong.
It is now 10.50 p.m.
When the Minister quoted the example which I gave he said he did not think that that was a marriage which had broken down. It may be modern breakdown but I know of situations where people have separations, they are living apart and have been for a substantial number of years but they can still get together once a year with their children, perhaps at Christmas or during the summer. Basically they still have a good friendship which is possible even in a marriage which has broken down. It is desirable that that kind of relationship would continue between the parents rather than total confrontation where people rarely ever meet except in cases of absolute necessity. In many cases children are totally ignored as a result. Even with the introduction of this kind of legislation one would hope that parents would still exercise joint rights over guardianship of their children and that they would still jointly make decisions in regard to education and matters of that kind. That should be encouraged. It does not mean that a marriage is successful, that a marriage has not broken down or that there is reason why divorce could not be considered in those circumstances.
In relation to some of the comments made by Deputy Flynn, it is unfortunate when we hear people using words like hypocrisy. Most of us regretted the tone of last week's debate but were very pleased with the tone of this evening's debate. There was a general air of calm and rationale around the House. People were discussing the issue very seriously until Deputy Flynn started accusing me of hypocrisy, of not pursuing the amendment and calling a vote. First of all, the amendment put down in my name is down on behalf of all five members of this party. When the Labour Party Bill was introduced in this House all of those five members voted for that Bill. Equally, in this party as in all other parties, there are many people who do not fundamentally agree with the need for divorce legislation. It would be a very unhealthy party if there were not people of that kind. I would say to Deputy Flynn that there is a difference in the wording between myself and the Minister just as there is a difference between the approach of Deputy O'Hanlon and that of Deputy Flynn or between the approach of Deputy O'Hanlon and the approach of Deputy Flanagan and Deputy Glenn. There is a vast difference in their approach.
Last week Deputy O'Hanlon outlined a very good case against divorce but he did so in a very calm, rational and meaningful way. That could not be said of many of the other Members on that side of the House. Differences can occur and people should not read too much into those differences. I am enough of a political realist to know that there is no point in calling a vote on an issue of this kind when one knows that only five or seven people will vote for it simply because one wishes to pursue a principle of one kind or another. Deputy Flynn, despite his protestations for many years that he would always vote against divorce legislation in this House, did not choose to call a vote last week or did not choose to vote against the Labour Party Bill when it was being discussed. It is unfair that words such as that are used and that we are accused of things simply because we try to improve legislation.
One of the interesting facts about this evening's discussion is that Deputy Haughey and I agree about the unsatisfactory nature of the word "failure". We agree even though we have two different points of view. I believe the whole concept is far too subjective and restrictive. Deputy Haughey believes that it is not restrictive or stringent enough. We can come to virtually the same conclusion while approaching it from totally different sides. That is often the case on issues of this kind. The debate today was very good and worthwhile. I wish to ensure above all else that political difference in this debate is minimised and in so far as possible that we can come to some consensus and agreement because this kind of issue is above party politics. I want to see this amendment succeed and I want to see divorce legislation introduced even if it is extremely restrictive, far more restrictive than I would wish. It would be preferable to the situation which we have at the moment. I do not underestimate the difficult task that lies ahead for those of us who want to see this amendment succeed. Already there are signs that many people outside this House and indeed within it are beginning to misrepresent the issues. There are many people in first marriages, in particular women, who are gravely worried about the consequences of this legislation because of the false information they get from many groups who claim to be responsible. They have no need to be worried.
Would the Deputy come back to amendments Nos. 1 and 2?
In conclusion, I feel that the Minister is making a mistake by failing — that is an unfortunate word — by refusing to accept that "irretrievable" or "total" breakdown are more appropriate words to use.
The Deputy used the word "failure" on two occasions in a very specific way and on one occasion she defined it as a success.
When we are sitting here for a number of hours I am not surprised what kind of words we use. I am not fussy as between the words "irretrievable" or "total". They both signify the same thing, that the relationship between the two parties to the marriage has ended and broken down and is very unlikely ever to be reconciled. It is a better concept. It is better for the people involved and for the courts. At the end of the day it may be founds that it would have been a more satisfactory way to describe what has happened. No doubt, throughout this debate there will be many examples given of marriages that may not have totally worked out but can well be described as not having failed. We are leading ourselves into an unfortunate position by insisting on using the word "failure" but I accept the political reality of the situation. For that reason I do not see the need to call a vote.
Tarraingíodh siar an leasú faoi chead.
Tairgim leasú 2:
I gCuid I, leathanach 7, líne 1, "teip" a scriosadh agus "cliseadh" a chur ina ionad
I gCuid II, leathanach 7, líne 16, "failure" a scriosadh agus "breakdown" a chur ina ionad.
I move amendment No. 2:
In Part I, page 6, line 1, to delete "teip" and substitute "cliseadh"
In Part II, page 6, line 17, to delete "failure" and substitute "breakdown".
Amendment No. 2 was discussed jointly with amendment No. 1. Is the Deputy pressing amendment No. 2?
Obviously there is no point in pressing amendment No. 2 if amendment No. 1 is not accepted. If the word "failure" remains in Part I then there is no point in my substituting the word "breakdown" for the word "failure" in Part II.
Tarraingíodh siar an leasú faoi chead. Amendment, by leave withdrawn.
Tairgim leasú 3:
I gCuid I, leathanach 7, líne 3, "nach féidir le réasún bheith ag súil le comhréiteach" a scriosadh agus "nach dóigh le réasún go mbeidh comhréitheach ann" a chur ina ionad
I gCuid II, leathanach 7, líne 18, "possibility" a scriosadh agus "likelihood" a chur ina ionad.
I move amendment No. 3:
In Part I, page 6, line 3, to delete "nach fédir le réasún bheith ag súil le comhréitheach" and substitute "nach dóigh le réasún go mbeidh comhréiteach ann"
In Part II, page 6, line 19, to delete "possibility" and substitute "likelihood".
Amendment No. 4 could be discussed with amendment No. 3 if Deputies Mac Giolla and De Rossa are agreeable.
I do not think they can be discussed together.
On a point of order, I see a difference between amendment No. 3 and amendment No. 4. We will be arguing amendment No. 4 in Irish.
That can be done if the House is agreeable.
Tugadh tuairisc ar a ndearnadh; an Coiste do shuí arís.