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

Aththairgeadh an cheist: "Go bhfanfaidh an Sceideal mar chuid den Bhille."

Question again proposed: "That the Schedule be the Schedule to the Bill."

Dr. Woods

Before the break I had been dealing with a number of questions that arose in relation to this section on the Second Stage and have carried on into the Committee Stage. I had pointed out that as far as I could see a number of these questions have not been answered satisfactorily by the Minister and I look forward to hearing his view in the course of the debate this afternoon.

As a final point in the list of points, I raised the question of the family based on marriage and the position which would exist under the terms of the amendment. I want to know what the position of the first family will be and how their rights will be determined if the amendment as proposed by the Minister is included in the Constitution. It is also clear to me that the amendment affects every single family in the country and that there would no longer be a permanent contract; every marriage could be set aside in future, albeit under the terms that the Minister has mentioned which we have discussed in some detail earlier. It seems quite clear that every marriage in the country is affected and that in making a decision on the question people should understand that that is what is involved. I want the people to be aware of the issues that are involved. They should be aware of the implications before they make their decision.

I was particularly interested in the Second Stage contribution by Deputy Kelly. He seemed to be very clear about a number of issues which are not being presented clearly outside this House and, after today there possibly will be more confusion as the for and against campaigns go into action. It is our duty to establish the factual position. Deputy Kelly said he accepted that divorce is a dreadful event for children. He also accepted that the introduction of a divorce jurisdiction would be progressive and that even though we may be introducing something which is quite restrictive, the measures will be relaxed progressively. These are the worries we were trying to tease out this morning. We were worried that the wording proposed by the Minister would leave itself open to that kind of interpretation in the future.

Deputy Kelly went on to say that once we had a divorce jurisdiction it changed radically the concept of marriage. Deputy Kelly is a professor of constitutional law and very honestly and openly says what he thinks will happen. If the Government say honestly and openly what the facts are, the people will be in a position to make their own decisions and, on such an important moral question, it is the people who must decide.

Deputy Kelly went on to say that as the law stands the word "married" cannot be defined except by reference to indisslolubility. It is nothing if it is not indissoluble. He said he accepted that it will undergo a kind of chemical transmutation and that is undeniable. There will be a change in the status of the family in society and there is no point in Deputies suggesting that there will not be. We have to weigh this change against finding a compassionate and humane way to deal with the problems which might arise but it does not help if the Government are not forthright and honest about these matters.

Deputy Kelly then said that marriage would become an arrangement, although in the vast majority of cases it would be a permanent arrangement. As I said, that is a very honest and objective appraisal of the fundamental nature of the change we are considering. In this regard Deputy Kelly's view is particularly relevant since, as I said, he is a professor of constitutional law and is not confused between the statutory provisions and the constitututional position. As he knows, the constitutional position will override any subsequent statutory proposals and any proposal brought forward must have regard to what is contained in the Constitution.

He said he did not see this matter in terms of a civil right. He went on to say that he did not think anyone looking at marriage as a contract, even in the most simple and elementary form, could say that there was a civil right to dissolve a contract. He added that there is the right to break it and to pay damages and there is the right if both parties agree to modify it or to withdraw from it. However, he said, it was over-selling the case for the Government to describe divorce as a civil right. He said it would probably cause as many breakdowns as it will remedy and he made it very clear that he does not see this matter having anything to do with Northern Ireland.

It is very important that we make these points very clear. It is not simply a case of giving a yes or no to divorce in Ireland. It is not simply a question of removing the present constitutional ban on divorce. What we are talking about is amending the Constitution to provide every citizen with a constitutional right to divorce. People must understand this when they are making their decision. The Government's basic approach is to put into the Constitution a firm and strong provision for a constitutional right to divorce. To my knowledge, no other country has a constitutional right to divorce, although most countries have provision within the law for divorce. I looked at some constitutions, including the American Constitution which provides a range of rights, but it does not provide a constitutional right to divorce. This is one of the problems which arises under the Government's proposition. They are providing a constitutional right to divorce and we are removing the ban.

Up to now we were unique in protecting the family with very strong constitutional provisions. I mentioned these provisions on Second Stage: the State recognises the family as the natural primary and fundamental unit group of society and as a moral institution possessing inalienable and imprescriptible rights antecedent and superior to all positive law or statutory regulation. The family is superior to any measures that might be taken and has very strong rights.

Our Constitution banned divorce but we are now removing the ban and putting divorce in its place. I would like the Minister to say a little more about why he did not propose a simple removal of the ban and attempt to provide for remarriage within the law. At a very early stage of the Oireachtas joint committee I presented a paper to them indicating that I thought it would be very difficult, even if you removed the ban, to introduce legislation which could provide for divorce because of the strength of support for the family in the other Articles of the Constitution. I am fully aware of that argument. The Minister has substantial legal and other resources available to him, and I would like to hear more about his thinking on the impossibility or possibility of doing that.

The Minister could have updated nullity and other things as Deputy Kelly suggested. Could he have introduced legal arrangements of any sort that would meet the requirements of families who have no legal status where a second union has been formed? My advice was that this would be extremely difficult if not impossible. The Minister seems to feel this is possible. If that is so, then other consequences will flow from that.

The question will go to the people. The Electoral (Amendment) Bill is to be taken in the House shortly and will just propose one question as follows:

The Tenth Amendment of the Constitution Bill, 1986, proposes to delete subsection 2º of Article 41.3 of the Constitution, which states that no law shall be enacted providing for the grant of a dissolution of marriage.

That is the first part — and to substitute then the words we are discussing here in this Bill here today. The next subsection of that section provides:

2. If you APPROVE of the proposal, mark X opposite the word Yes on the ballot paper.

3. If YOU DO NOT APPROVE of the proposal, mark X opposite the word NO on the ballot paper.

Therefore, it is a simple yes or no to two things combined which are (1) removing the ban (2) the introduction of a positive provision for divorce in the Constitution. People will just be offered the two things for one yes or no to the two combined.

Members of the House will remember that Deputy Michael O'Leary proposed the removal of the ban and then the control of divorce legislation through the Constitution. That was another approach which reflected a view and an attitude of mind amongst people who would want divorce legislation and would recognise that it should be kept in a very restricted way. He suggested that mechanism as a means of achieving that. Now the Minister is removing the ban and putting divorce in its place. The question arises then as to whether he really needs to rewrite the guarantees for the family, especially for the first family, which are contained in other Articles.

Will there be a conflict there in relation to the first family? Will all those powers in Article 41.1.1º remain, the inalienable and imprescriptible rights, the State guaranteeing to protect the family in its Constitution and authority? Then it goes on to state that the family is the family based on marriage. What will happen where there is contest between the two families and they wish to appeal to the Constitution? Which family will the Constitution recognise? Will it have to recognise both families equally? It will be clear and certain that the second family will have the full force and protection of the Constitution because they are clearly the family based on a marriage, and the marriage is the marriage mentioned in the amendment.

Therefore, the position of the second family will be clear, but what is the position of the first family? How will that be judged by lawyers in the future when they start to tease out the elements in this amendment, if it is passed by the people? To ensure that the first family will continue to have clear constitutional support, will it not be necessary for the Minister to put that specifically into the Constitution, to rewrite the other Articles that surround it? I would like to hear from the Minister on that because it will affect very much the position of the first family if this amendment is passed.

It is very relevant because, as mentioned on Second Stage, families have appealed to the Constitution for protection against the State when the State was being unhelpful to families or tried to press families into a situation they did not want to go into in education and other things. What will be the definition of a family if the Minister's amendment is accepted by the people? How will that be implemented?

Let me give an example. A lady has written to the Taoiseach, the President and others because of her present position. She has an agreed separation and her husband is contributing £5,000 per annum for maintenance. She is trying to support two teenage children and to maintain what she calls the family home. She is having difficulty in doing this because income tax is being charged on the amount which she has. She says:

I regret that I am unable to pay tax on my maintenance of £5,000 per annum. To pay this tax I would be obliged by economic necessity to seek and engage in labour to the neglect of my duties in the home. My support in the home to my children is my primary and moral obligation, and I hope that this matter can be brought to a satisfactory conclusion.

That matter was raised in a parliamentary question recently and it is with the Taoiseach who is fully aware of it. I give it only as an example of how these various provisions in the Constitution for protecting the family are used by the family to protect their position, and the administration of the day must take cognisance of the fact. That lady stressed in particular Article 41.2.2º which provides that:

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

That is stated expressly in the Constitution and on that basis this lady feels she has a clearcut case. In practical terms she is in a very difficult position at the moment if the Revenue Commissioners are taking money and she is trying to maintain the family home and carry on.

All the definitions apply to that situation now. In the future if the Minister's amendment is approved by the people, what will be the position? What will be the family? What will be the family home? If her husband left her that sort of money and then married again, what would be her position, her rights? Could she claim as the family still in what used to be the family home? Solicitors and lawyers have very definite definitions as to what the family home is. I am not dreaming up these fears, they are problems which the Minister asked us to address and the harsh realities which must be faced. I only mentioned that case as an example of what the family home is and what it will be if the amendment is accepted by the people. I accept that the Minister wants to provide for the first family in any circumstances but the question is not about the Minister's best intentions, it is about what the lawyers will determine if the amendment is passed.

A number of areas raise serious questions. I mentioned social welfare generally and the reply was that the State will provide under social assistance schemes. If that is the case, the women and children of the first family will lose substantially. Let there be no doubt about that. If the Minister thinks that that is not the case I should like him to explain clearly why it is not. Will the Minister provide duplicate pensions or will people have to rely on social welfare payments? Children would also lose social welfare benefits because they would be dependants of the divorced wife if we assume that they are living with her and that she is trying to keep the home going. The right to benefit on the father's PRSI will be transferred, under the constitutional amendment, to the wife and children of the second family. The wife and children of the first family will lose the right to these benefits and instead will get social assistance. The most up to date rates of social welfare are due in July. If a wife of 45 years of age with a husband slightly older gets a divorce and the husband marries again and dies after five years, the widow's contributory pension will go to the second wife. The first wife may have been in receipt of a deserted wife's benefit but this will not be applicable now and she will have to go on to deserted wife's allowance. The rates in respect of her children will vary, depending on the size of the family, but there is a distinct difference between the social assistance scheme and the benefit scheme. As a result of the loss of PRSI benefit the wife would lose £6.95 per week. If she had six children she would lose £14. There is a personal loss for the wife and also for the children.

The Minister said that the divorce will be finalised in the Family Court. With all the good intentions which he has in relation to it and in which we support him the position changes when divorce is available. The Minister also said that a lump sum could be paid which would compensate for the loss of future benefits. However, a wife in these circumstances, having been transferred to means tested social assistance, will not be able to earn any money without losing at least some of her assistance. Even the allowances under social assistance would be reduced. Obviously, if she invested the lump sum the annual income would also be taken into consideration. The terms and conditions in that regard are very strict and are covered in the Social Welfare Act of 1981. Even if you earn a very small amount it is deducted from your allowance.

In The Irish Times of 20 May 1986 the Minister for Health said that allowances would not be affected. He told a Labour Party public meeting in Dún Laoghaire that certain unnecessary fears had been raised in relation to the entitlements of women receiving deserted wife's benefits and allowances. He said that once a wife's entitlement had been established, the social welfare system continued to support her as long as she was deserted even if she was subsequently divorced abroad. However, if the husband resumed financial support of the family the entitlement would cease. That kind of information is misleading in these circumstances because once a divorce takes place a new situation arises. Are both wives entitled to PRSI and widows' benefits? I do not think that is the case. Is the second wife entitled to both? In my view the position is not as outlined by the Minister and if I am correct that should be made very clear because people are confused about it. The same applies to the different allowances. We have not had experience in that area and the figures for Britain and other countries show that the vast majority of women who are left at home with children to look after end up on the poverty line or close to it. They are thrown back on to the means tested social assistance schemes. If they try to supplement their income their benefit is reduced. The Minister must take into consideration the views expressed by Members on Second Stage.

People have raised questions about the financial implications but the Minister has not answered them. Deputies are right to raise those questions now so that people will be aware of the position before they vote on the amendment. Will the Minister explain what will happen to Army, Garda and public service pensions? Presumably, the first wife will lose the widow's and old age pensions and the direct entitlements from them. The Minister may say this will come in under reasonable and proper arrangement or adequate and proper provision having regard to the circumstances when the divorce is being decided. All circumstances should be included but in Practice it does not seem to work out that way elsewhere. We must try to protect the position of the first family in that regard.

Orphans will lose out under this. The rate for orphans is £4.90 per week less. In all those areas the amounts will be less and they will be means tested as distinct from the direct benefits under PRSI which a woman would be entitled to and still has even under separation. The dependent wife's benefit depends on the husband's PRSI. The non-dependent wife may have her own PRSI and, consequently, may have rights. That may be the reason why the Minister has left her out of the provision before us. Part II states:

...provided that the court is satisfied that adequate and proper provision having regard to the circumstances will be made for any dependent spouse and...

It may be that in the Minister's view a spouse who is not dependant would continue to have rights. In other words, 100,000 working women would continue to have rights under PRSI and so on and be able to obtain benefit on that basis. If we accept the figures that have been given, 650,000 wives, less 100,000 working wives, it means that there are at least 550,000 dependent wives who will be dependant on the financial protection that will remain with the first family. Under the present arrangements those benefits continue. If the husband is on a benefit scheme the wife continues to receive those benefits but it appears that will cease on the day the divorce takes place. It appears that a dependent wife will lose the deserted wife's benefit and the widow's contributory benefit. The rates in regard to those benefits are very different.

What will be the position in regard to the old age contributory pension for a woman? Presumably a wife will lose the right to the old age contributory pension. The Minister may tell us that the noncontributory pension will apply but in those circumstances a wife will be forced to apply for a means tested old age pension. The rates for such pensions are very different. The loss per week, according to the rates that will apply from July next, will be £7.70 or 14 per cent. The loss will be greater if the wife has any savings or any other income because that pension is means tested. The Minister said our fears have been plucked out of the air but they are very real. People are concerned about these issues. It appears that the rights under the widow's contributory pension scheme and the old age contributory pension scheme are transferred to the second or subsequent wife meaning that the first wife and family will lose their rights and will fall back on the means tested benefits. The State will then have to recognise the claim under the Constitution of the second wife and family to the PRSI benefits which will have accumulated.

The question of the non-dependent wife also arises. Will the Minister define for us a "non-dependent wife"? Will he give an indication of the income level in regard to that person? I presume the term refers to working wives which would mean that 100,000 working wives will be omitted intentionally by the Minister from the provision in the amendment. On Second Stage I raised a question about this but the Minister did not respond. How much must such a person earn to be "non-dependent"? What if such a person becomes dependant after the divorce? What will happen to her if she loses her job or has to work at home? Is there any protection for her in the Government's legislation? It does not appear that there is any protection for her since all protections apply to a dependent spouse only. Is it the intention to introduce a new social assistance divorce allowance should such a person be obliged to mind the family?

Will a working wife have a divorced wife's benefit based on her own PRSI? Will she get credits while she works in the home after her divorce, or will she have to fall back on the means tested benefits? It appears that the position of such a person is not protected in the Minister's amendment. Will the Minister tell the House why that person is specifically excluded? It appears that all of this depends on means testing. The calculation of means is contained in section 210 of the Social Welfare (Consolidation) Act. It spells out very clearly how means are calculated for social welfare conditions. The weekly means of a person for the purpose of ascertaining entitlement are set out in subsection (2). The various elements are given, but basically it is a very tight provision. Subsection 2 (a) states:

In calculating the weekly means of a person, account shall be taken of the following:

(a) all incoming cash, including the net cash value of any non-cash earnings derived from personal exertions and the actual or estimated amount of any income as head of household, whether as contributions to the expenses of the household or otherwise...

Excluded are sums received as children's allowances for handicapped children and so on. It makes quite clear that in regard to the value of any property belonging to such person which is invested or which, though capable of investment or profitable use is not so invested or profitably used, the yearly value of the first £400 of the property is being taken to be one-twentieth part of the capital value and the yearly value of so much of the capital value of the property as exceeds the sum of £400 is being taken to be one-tenth part of the capital value and the weekly value of the property is being calculated as one-fifty-secondth part of the value so calculated.

Sums exceeding £400 will be calculated and taken into consideration. When the Minister says that a lump sum will be paid at the divorce stage which will take into account the loss of these rights, it would want to be a very substantial sum in the first instance. It would also want to be arranged in such a way that it can be delivered without being devoured by the means test, the Revenue Commissioners and other people subsequently.

That brings me back to the basic question of the position of the first family in relation to appeals against any abuse in the future in that area. The supplementary welfare allowances, of course, will probably apply and these are given on page 147, No. 207. There it is set out quite clearly that:

The weekly needs of a person shall be subject to any payment pursuant to section 209 to be taken to be, in the case of a person who has no means, the amount calculated in accordance with section 208; in the case of a person who has means, the amount calculated in accordance with section 208 which would be appropriate in his case if he had no means, reduced by 5p per week for every 5p or part of 5p in his weekly means.

That is sufficient to indicate that the means test aspect is extremely tight. Will the Minister radically change all that? He could change the whole situation. I presume the reason for not changing all of it is that the cost would be pretty astronomical, as the Minister could guess. If there is to be an overall change, why has the Minister not made some specific provisions in his amendment for the first family, to make sure they are kept out of the poverty trap about which we have spoken so often on other occasions in this House? Unless the State accepts the constitutional obligation to provide adequate maintenance for the first family, if the Government put divorce into the Constitution, why not put adequate safeguards for the dependants?

Mr. Dukes

If the people put divorce into the Constitution.

Dr. Woods

The people can only vote and that is why I mentioned the question that the people will be asked. They can only vote on the amendment which the Government put before them. I accept that it is the people who must decide the issue. It is one question that will be asked there. I have not dealt with the situation of the mother leaving and the father having to maintain the children. According to the information we have at our disposal, this would be a smaller percentage of cases but there is still a problem where the male spouse is left to run the home, or a home, or some home. Now we are back to what will be defined as the family home in those circumstances in the future.

Under the provisions of the Family Home Act a spouse does not have a right to sell or dispose of the house without the consent of the other spouse. What will be the situation there? Obviously it could be the father who stays in the house with the children and where will his welfare come from? How will he be able to protect the children in the home? Will that be the home, or if he goes to a different house, which house becomes the family home? Which is the family who will be able to rely on the Constitution for the protection they need? What financial assistance will the State provide to help the father in these circumstances? Can the State be forced to defend the first family from attack, whether it is the father who has to support the children in a house which may or may not have been the family home, or whether it is the mother? There will be cases where the father is left to undertake that care, although most of the debate has concentrated on the situation where the mother is left to bring up the children. I have mentioned only some of the questions arising in this area. There are others which we could discuss if we had more time. I should be very interested to hear the Minister's views on these matters.

Mr. O.J. Flanagan

Shall I have an opportunity to contribute?

An Leas-Cheann Comhairle

Yes, Deputy.

Mr. O.J. Flanagan

It is a pity, because the Minister could have answered the questions together.

Mr. Dukes

I am sorry, but on Committee Stage debate I believe it is the habit of the House, which is provided for in Standing Orders, that questions can be dealt with as they arise. That is part of the value of Committee Stage procedure. I should like to comment on some points which Deputy Woods raised. He has alleged that there is confusion. If there is confusion, a great deal of it is being caused by the constant repetition of questions which have already been answered and in some cases by the repetition of statements which have been demonstrated not to be true. To the extent that Deputy Woods feels there is confusion around, he will find perhaps that some of the confusion arises from that. He has raised again today a number of the questions which he raised last week. He has raised again today a number of the questions I dealt with last Friday in my reply on Second Stage. He has not indicated whether he accepts the answers, or has any comment to make on those points, whether he has any critique to make on them. He has spoken this afternoon as if nothing had been said last week. I am entitled to feel that one can ask what is the point of having a debate.

There are a number of points which Deputy Woods raised which I dealt with last Friday and I intend to deal again with some of these — indeed, to go over some of the ground I covered last Friday. If Deputy Woods finds that there is anything in what I say that he believes is unclear, let him ask for clarification. If he believes that it is not correct, let him make his point and we shall argue the toss about it. If he does not believe it, let him give his reasons for not believing it, but let him not simply make assertions. I refer him again to Deputy Haughey's valedictory remarks this morning just before the left the Chamber to attend to some other busness, that we should not be foolish enough to assert with any degree of certainty how it will work out except, of course, where we are basing ourselves on the law.

The first point Deputy Woods made was the contention that the amendment proposed meets all the needs of the second family. He seemed to have second thoughts about that in the later part of his remarks. He appears to take the view that it will not meet the needs of the first family. He asked is there a need to rewrite the constitutional provisions to protect the first family. There is not. Deputy Woods analysis of last week, as I said last Friday, seemed to be along the following lines, and he indicated this again this afternoon: Articles 41 and 42 give constitutional protection to the family based on marriage. He instanced the fact that the State has passed legislation to protect the family against the State in some cases. I would not argue at all with that.

He contends that once a marriage is dissolved the partners and their children cease to be a family based on marriage. He then concludes that, in the event of a remarriage, the children of the first marriage not only lose the constitutional protection that is conferred upon them by Articles 41 and 42 but he went so far as to suggest any statutory rights that might be afforded them could in some way be regarded as unconstitutional. That is not the case. I want to repeat what I said on those points last Friday afternoon. There is no doubt that Articles 41 and 42 give protection to the family. As I said on Friday, to the extent that those Articles enjoin the State to act they are not stated in precise terms. This is perfectly proper and is not in any way a criticism of the Constitution to say this. They do not prescribe the specific things the State should do to protect the family. That is the job of the Legislature working within the framework set out in the Constitution.

Look, Deputy, I am going to take this piece by piece. It will require a little patience but I want to go through all these things in the order in which they were raised.

Dr. Woods

I am very patient Minister, I have no problem in that.

Mr. Dukes

That is excellent. The Deputy is a man like myself. He can wait for the good wine and I have been waiting for a while. I was making the point that the dissolution of the marriage does not alter the rights the children have against their parents. Particularly, I want to make the point that the dissolution of a marriage does not in any way affect the succession rights of children as against their parents. The children of a man or of a woman have particular rights conferred on them by the Succession Act, 1965. On the death of their parents, the children have rights to their estates. It does not matter whether that parent is still married or divorced. That is not a consideration in setting out those children's rights. The rights stand simply because that person is the parent of those children.

Dr. Woods

They will be diluted and diminished.

Mr. Dukes

I will come to that also in a moment.

With all respect, Deputy, that is a fact. To say that because there may be other children of either one of the parents represents a dilution simply says that the same thing can happen in those circumstances as would happen if a given couple had more children. It is not an argument that has any fundamental relevance to the provisions here. The fundamental point is that the dissolution of the marriage does not in any way alter the nature of the rights children have on succession against the estate of their parents.

I pointed out last Friday and I point out again that it is wrong to suggest, as Deputy Woods has, that any of those statutory rights of the children of the first family could in any way be regarded as unconstitutional. Their inspiration comes from the Constitution. Their form and reality come from statutory provisions. They are not affected by a change in the status of the spouses as between one another. There is no ground on which you could argue that those rights become in any way unconstitutional simply because there has been a dissolution of the marriage. Children, as the offspring of married parents and, therefore, members of families based on marriage, retain their constitutional rights under Articles 41 and 42 even when the tie between the parents has been severed by a dissolution of the marriage.

In addition, children of parents who seek and secure a divorce are being given an extra constitutional protection because of the proviso we have put in the Schedule which makes it a condition of the granting of a dissolution of marriage that the court be satisfied that adequate and proper provision, having regard to the circumstances, will be made for any dependent spouse and for any child of or any child who is dependent on either spouse. Far from diluting, reducing or alienating in any way the rights of children of the first marriage, we are maintaining the rights they already have. We are imposing a constitutional obligation on the court to ensure that proper and adequate provision is made for those children and, indeed, for any other children in respect of whom an obligation may lie on either one of the parties to the divorce proceedings?

The dissolution of marriage, as has been pointed out, will deprive spouses of rights deriving from Article 41 in relation to each other. They cease to be spouses so they obviously cease to have the rights spouses have in relation to one another. It follows therefore that, on a dissolution of marriage, each spouse will lose his or her statutory entitlement because those are rights that attach to spouses qua spouses. Those rights which are in question here would include, for example, the wife's legal right share, the wife's share to a husband's estate on intestacy and, equally, any rights a husband might have in relation to his wife's estate. The law as it stands, the legislation for which Deputy Haughey claims credit, the Succession Act, 1965, provides in certain circumstances for a loss of succession rights. This is stated in section 120(2). One such circumstances is where a decree of divorce a mensa et thoro, a judicial separation, has been granted. In such a case the spouse against whom the decree has been secured by a deceased person is precluded from taking any share in the estate of the deceased either as a legal right or on intestacy.

In their report on divorce a mensa et thoro the Law Reform Commission recommended that on the granting of a decree of judicial separation, that is, a new form of decree which the commission recommended should be available on different and generally wider grounds than is the case at present, each spouse should be precluded from taking a share in the other's estate. The Oireachtas Joint Committee on Marriage Breakdown looked at this question and took the view that the courts should be empowered to vary or to discharge a spouses right of succession following the granting of such a decree, having regard to the circumstance of the parties and in the context of determining what orders, if any, should be made for the division or transfer of property between spouses.

It is significant that the committee, of which Deputy Woods was a member, agreed that the rights of the children in relation to succession should not be affected, though the committee suggested that changes might be made in relation to the rights of the spouses. I will not travel all over the grounds the joint committee dealt with. The point I want to make is that both the Law Reform Commission and the committee felt it was appropriate to recommend that in judicial separation there should be a change in relation to the rights of spouses in the matter of their respective property and in relation to succession. It is a common condition of separation agreements and judicial separations made between spouses that each spouse renounces his or her right to a share in the other's estates because, considering their respective circumstances, they would take the view that that is the end of their marriage and they want to go their separate ways.

I will not go into the specific examples Deputy Woods gave but I will make the point that it is obvious a problem arises in this area in any case in which an action is being taken by persons, that there would be a change in status in some instances, but in regard to spouses only. The only way to avoid such problems and problems in regard to succession is to prevent marital breakdown taking place, but we have not found a way to bring about that result which we would most wish to bring about but which is beyond our reach. It is very clear that no matter what the circumstances, there will be inevitable difficulties for the persons concerned in trying to make provision for two households out of the assets and income which previously had to support only one. It is inherent in the nature not just of divorce but of marriage breakdown and separation that those problems will arise and have to be dealt with.

It is in recognition of that that we have put a proviso into the Schedule before us. It was particularly in recognition of the fact that on the dissolution of a marriage there is a change in the rights of spouses that we have provided that this requirement should be part of the constitutional amendment, and it is further recognition of that difficulty that the legislation will provide that the courts can make orders as to the disposition of property. Our intention is that the mechanism will allow the courts to put something in place of the succession rights that will have been changed or extinguished by the dissolution of marriage.

I do not think there is anything in what I have said that can be contested by Deputy Woods. He may be able to say I have not answered every point he made. I will accept that and I will be very happy to deal with those matters if they are brought to my attention, but there is nothing I have said that can be contested by Deputy Woods. Allowing for human error, and I claim to be human, I may have left out something, but there is not the ing misleading, untrue or incorrect in what I have been saying. That being so, I hope this afternoon is the last time we will hear the claim that a dissolution of marriage in any way dilutes, changes or takes away or extinguishes the rights under the Constitution of the children of the first marriage and transfers them to those of the second.

What I have been saying clearly indicates and demonstrates that that is not the case. I appreciate the atmosphere in which the debate is being conducted, but if I hear that claim being made again I will find it very difficult simply to say that it is wrong: I would have to say that it can only be intentionally misleading. I have said enough to show that that is not the legal or the constitutional position. Nothing I have said has been challenged.

Contentions and claims to the contrary notwithstanding, I want to make it quite plain that the dissolution of a marriage does not extinguish the succession rights of the children of the first marriage. It cannot, therefore, in any way transfer those rights to the children of the second marriage. There can be nothing unconstitutional in the provision that all children of the spouses are treated equally in relation to succession. Those claims should, therefore, disappear from our debate here, from the pages of the press and from comments in the media, because there is no foundation for them.

I thought the Minister was talking about what I said.

Mr. Dukes

Mr. Dukes

Dr. Woods

No, the level of dependency.

An Ceann Comhairle

It is impossible to conduct a debate by question and answer.

Mr. Dukes

Deputy Woods asked earlier if there was a level of income at which a spouse goes from being non-dependent to dependent or vice-versa. As I have said, it is up to the court in the particular circumstances of each separate case that comes before it to satisfy itself in relation to the propriety and adequacy of the provision made for dependent spouses and children. It is extremely important in that regard that the text we have before us refers to adequate and proper provision having regard to the circumstances, because each case would be different and the provision that would be made in one case with a given amount of income and assets would be completely different from the provision to be made in another. We have provided that the court must be satisfied that adequate and proper provision, having regard to the circumstances, will be made for any dependent spouse and any child who is dependent on either spouse.

Deputy Woods asked why we did not write in there specifically a provision in relation to compensation. I think he envisages compensation arising in cases such as the one he mentioned last Friday in relation to a farm where the wife had made a substantial contribution over the years to building up the business of the farm, or any other business, and would feel entitled to seek some compensation for that. Another case would be where a spouse, whether the wife or the husband, decided on marriage and on the birth of children to give up a job or career or a profession in order to stay at home and found after a period of marriage and looking after children that it was not going to be so easy to get back into that type of job or career or profession.

We can all imagine cases where that could happen. But those are specifically and severally the kinds of things that would be comprehended under the requirement on the court to satisfy itself that adequate and proper provision having regard to the circumstances is made. The provision of course would not be limited just to that. Provision would go further than that simple notion of compensation, although it is included. It would go on to cover maintenance, some continuing provision and the distribution of property between the spouses. What I am saying is that the framing of that proviso in the Schedule is in fact wide enough to allow the court to take account of all of the circumstances of the spouses when they come before it looking for a dissolution of the marriage.

Deputy Woods asked would subsequent legislation be constrained or obstructed by the Constitution. Subsequent legislation would obviously have to follow the guidelines set out in the Constitution. Subsequent legislation could not derogate in any way from the terms of the Constitution. In particular, subsequent legislation could not provide any derogation from the requirement on the court to be satisfied that proper and adequate provision having regard to the circumstances was made. Subsequent legislation perhaps could conceivably require more stringent conditions to be applied. It could make more stringent demands on the court on the conditions to be met before a dissolution of the marriage could be granted.

Deputy Woods quoted a number of statements made by Deputy Kelly. There is quite enough to go on with in the comments made by Deputy Woods himself without dealing with Deputy Kelly. Incidentally, I do not agree with everything Deputy Kelly said and I specifically do not agree with his contention that there is in any sense a chemical transmutation in any way. I like the phrase but I do not agree with the concept and I do not agree that that is what would happen in this case.

Deputy Woods went on to say that no other country has a constitutional right to divorce. I accept his word for it and presume that he has checked up the other constitutions — there are not many written constitutions around. I am subject to correction but I am not aware of any other constitution that has a ban on divorce.

Mr. O.J. Flanagan

There are not. I had it checked out and there are none.

Mr. Dukes

We may all be wrong, in which case we will have to recognise a different reality. But I cannot see that that is a particularly relevant reflection in the context of discussion we are having here. It is what I would call an Aunt Sally argument where one puts up a cockshy and knocks it down with a coconut, but one has not done anything that is very constructive because the only reason we are having this discussion is that there is currently a ban in our Constitution on legislation to provide for divorce. We have decided that we will remove that ban and replace it with a different provision which is the one we are talking about.

There is no other country that I am aware of where that set of circumstances existed. So, therefore, we can quite reasonably conclude, although the conclusion does not mean anything in particular, that there is no other country that has a constitutional right to divorce. As far as I am aware, in all of the other jurisdictions that Deputy Woods may have in mind with which I have any acquaintance, while there is a legal right to divorce the question of constitutionality does not enter into it because the constitutions of those countries, to the extent that they are written constitutions — and there are not all that many — are silent on the question of divorce. Therefore, while I do not disagree with Deputy Woods' conclusion, I would like to caution both Deputy Woods and the House against making any particular big thing of the fact that no other country has a constitutional right to divorce. It is a result of the particular combination of circumstances that we have here. We are replacing the provision in the Constitution rather than simply deleting the one that is there at the moment for reasons which Deputy Woods knows about perfectly well. Indeed, I think he said last week during the course of our Second Stage discussion that he himself was the one who first raised this question in the joint committee.

Dr. Woods

As allowances and assistance.

Mr. Dukes

She said:

The developments in the area of support for single-parent families will of course be carried out with reference to whatever related proposal the Commission [on Social Welfare] may make.

There is a need to constantly look at our social welfare code to decide if it meets realistically the needs of the people affected by it.

There are a number of cases which should not be left out of account where the benefits available to a deserted wife do not depend on the husband's insurance record. They are available to the wife by right on the basis of her own social insurance record. Where that is the case there would be no change in the entitlements and any subsequent benefits to which she might be entitled would be determined by her own insurance record. A vast number of the 100,000 people Deputy Woods referred to do not come into this category, but of the small percentage who do a proportion of them have their own insurance record and therefore do not fall to be considered in the context to which Deputy Woods referred.

The House will understand if I do not comment on the specific case Deputy Wood's raised which seems to have more to do with tax law than with any quirk of the law in relation to marriage. I do not think Deputy Wood's raised it to have it discussed here but——

Dr. Woods

It was to point out the rights of the family——

Mr. Dukes

——merely as an illustration of a particular point he was making.

Deputy Woods had a great deal to say about the social assistance part of our code and the operation of means tests in that part of the code. Without in any way arguing with the concern that he pointed out, I remind the House that means tests exist in that code for a particular reason. Whether we agree with the level of the means bar or not, the means test is there to ensure that assistance is directed to those who need it most and that less assistance is directed to people whose need is less. The status of the recipient, whether that recipient happens to be divorced, deserted or widowed, has nothing to do with the basic logic of the means test.

Dr. Woods

It is a very hard kind of decision in this case.

Mr. Dukes

That is not a hard decision. That is a statement of fact. That is why we have means tests. The application of those means tests to individual cases——

Dr. Woods

That is the hard part.

Mr. Dukes

——creates the need for taking decisions, and the formulation of the test itself as read out by Deputy Woods gives us the means of doing it. We may agree or disagree about the level of the means test and the way in which means other than social welfare payments are taken into account, but that is not an argument about the logic of the means test itself.

The proviso requires the court to be satisfied that adequate and proper provision, having regard to the circumstances, will be made for any dependent spouse, and so on. The circumstances there would obviously include, first of all, any property; secondly, any lump sum payments that might be made; thirdly, any provision that could be made for maintenance; and, fourthly, any other rights or assets that either one of the spouses or particularly the dependent spouse might have. Therefore it would seem to be clear that in a case where there is no property — those are the cases Deputy Woods was talking about — and there is no argument about the disposition of property rights between the spouses, it would be incumbent on the court to have regard to what the entitlement of the spouses, either jointly or separately, would be under the social welfare code, and that would clearly be comprehended in the reference to having regard to the circumstances.

I am not sure what Deputy Woods meant by the situation where a mother has left and the father has to maintain the children. One of the things the court would have to look at where there are children of the marriage is what to do about the family home. We must conclude that there would be circumstances in which, having regard to the circumstances, as it is enjoined to do by the terms of the constitutional provision, the court will decide that the family home should be handed over to the spouse who had and would maintain custody of the children. That family home which had been the home of the family based on marriage would now become the family home of one of the spouses and the children of that marriage. I do not see any possible confusion about that nor can I see how that in any way casts doubt on what the family home of the other ex-spouse would be in the event that that person went elsewhere and founded a new family. The family home is the place where the family ordinarily resides, and if one ex-spouse went off and left what was the original family home and set up in another residence and had a family there, then it is perfectly clear that that second place would be the family home of the second family. In any case, if, as would seem likely in those circumstances, the court had made an order determining the ownership of the first family home, there would be no further room for doubt about where the family home of the other spouse and children of the first family was. Therefore, I cannot see any need for confusion or doubt on that point. I hope, therefore, that it will not come up again during this debate because I see no reason for it to do so.

I am tempted to touch on a great many other points, and I am sure other matters will arise during the rest of the debate. The final point I want to make now, which again has been raised here, is that it has been suggested that the requirement to make provision under the social welfare code for cases where there is not enough in the assets and property the court has to look at under the terms of this proviso will result in an extra cost to the State. It is clear that in some cases there may be cost to the State. I pointed out last Friday afternoon that equally there are some cases where an existing cost to the State might come to an end.

We have deserted wives who now are not in a position to re-marry even though they may be already legally separated from their husbands. There is no extra cost if we continue a provision at the same level for those wives after they have become divorced if at the moment of divorce the court is in a position to allocate to her either property or income from the spouse who has departed. Then, other things being equal, there is reduction in the cost to the State if a separated or deserted spouse finds herself or himself entering into a second marriage with somebody else who can provide support or can assist in providing for support. There also there is a reduction in the requirement for the State to help. Therefore, it is by no means necessarily the case that divorce would create a new demand on the State even where there is not a great deal of property or income. To suggest that the extra cost could amount to anything like some of the figures that have been thrown around here in the last week or so is, if you will permit the hyperbole, Sir, absurd.

Dr. Woods

It is not.

Mr. Dukes

Let us look at the possibility. Take the figure of £200 million. If you were to say that there was some reason for believing that the cost to the State would be £200 million per annum I do not know how many divorces you would have to have as costing the State say even £20,000 a year in order to amount up to £200 million. That amount divided by £20,000 is 10,000 divorces a year.

Mr. O.J. Flanagan

The Minister knows very well that is not the position.

An Ceann Comhairle

There should be no interruptions.

Mr. O.J. Flanagan

There is the setting up of the courts, the personnel of the courts.

Mr. Dukes

That is not at all a reason for believing that the costs could reach that kind of level. I have said, pace Deputy Haughey and Deputy Woods, in the context of the legislation that will follow this that our intention in relation to the family court in particular is to make a number of additional appointments to the Circuit Court bench. We will appoint to the Circuit Court bench a number of additional judges. I do not know what the number will be but it will not be very large and would not come to a couple of million pounds worth of judges in the year, if I may say so without offence to their Lordships.

Mr. Leyden

More jobs for the boys.

Mr. Dukes

That is the most unworthy and contemptible interjection in this debate so far and the Deputy would have done himself a bigger favour by staying quiet. We are dealing with a serious point, and I said that we will appoint extra judges to the Circuit Court bench to deal with family law cases, not just divorce cases. To trivialise it by a remark like that is scandalous. However, we will appoint a number of extra judges to the Circuit Court and I have already given the reasons for doing so at Circuit Court level. I do not think that this will involve extra expenditure on courts. These courts will sit separately from the other courts to deal with family law cases in the kind of privacy which we all agree they deserve. We are certainly not talking about a requirement of several million pounds per year to fund these courts. If we are talking about allegations that the cost of this will be hundreds of millions of pounds per year, it must be on the basis of what will be paid out to people who, because of lack of income, have to rely on the State. It is patently absurd — I say that without the slightest hesitation — to claim that the cost could be in the region of £50 million to £200 million per year. That is plucking figures from the air without the slightest foundation for them.

I have no doubt that other points will arise during the course of this debate to which I will want to reply but I wanted to deal comprehensively with points which Deputy Woods raised today, some of which I answered last Friday afternoon.

Mr. Faulkner

I propose to deal with only one aspect of this matter but, before doing so, the public should clearly understand that the interpretations and assumptions of the Minister in connection with this Bill have no legal standing. If the amendment is passed the provisions of the Bill and the courts' interpretation of them are the only things that will matter. It will not be of any assistance to people who may bring cases in respect of this matter to quote what the Minister said and to assume that that is the legal position.

The Minister said on a number of occasions that a very restricted form of divorce will be introduced here. He made the point that the court must be satisfied that all the conditions in Part II are fulfilled before a divorce can be granted.

While this is all very fine in theory, we must remember that in practice it can be quite different as is the case in other countries where divorce was introduced. In most countries the provisions in Part II of our Bill have been introduced and during the divorce debate in Britain in 1969 people who spoke on this matter, who sincerely believed that the conditions laid down here or similar conditions would ensure that divorce would be restricted, found to their cost shortly afterwards that the situation was totally different. The detailed provisions of that Bill were warmly welcomed in the British Parliament by the National Marriage Guidance Council, but two years later they revised their opinion because they found that it was impossible to operate the various provisions.

In so far as the four conditions laid down here are concerned, the first is the major and basic one, that the marriage has failed. If that condition is accepted the others fall into place, although it may take a bit longer because of the fact that they have to be dealt with. The third condition is that there is no reasonable possibility of reconciliation between the parties to the marriage, which was more or less taken from the Divorce Act of 1969. The people who spoke on the measure in the British Parliament expected that this would be of very considerable assistance in the sense that every effort would be made to effect a reconciliation between the two parties. After a short time, however, it was recognised that there was no reality in it. Nowadays when two people come to court they are asked if there is any reasonable possibility of effecting a reconciliation. If one says that there is not the judge simply says that he cannot do anything further.

In 1973 a special procedure was introduced where, if there was agreement between the two people concerned, whereby one applied for divorce and the other was notified but did not respond, it was assumed that the marriage had broken down and the judge granted a decree. Neither of the spouses needed to attend the court as they were informed by post that the decree had been granted.

The fourth point is to ensure that any other condition prescribed by law has been complied with. The Government in their White Paper stated that they proposed to bring in legislation insisting that there must be a period of five years' separation before a person can apply for divorce. We are all aware that if the referendum is passed and the legislation is brought into operation any future Government will have the power to make the changes they wish. The period of separation may be reduced from five years to three years, or one year or abolished altogether. In Britain under the Divorce Act, 1969, the period was five years but in 1973 that was reduced to three years. In 1984 not only was the period reduced to one year but if an applicant could find any other reason for getting a divorce he or she could apply to the court before the year had elapsed.

Part II of the Bill states:

the court may in accordance with law grant a dissolution of the marriage provided that the court is satisfied that adequate and proper provision having regard to the circumstances will be made for any dependent spouse and for any child of or any child who is dependent on either spouse.

We have had a long discussion about the provisions of the Succession Act and I should like to emphasise again that the divorced wife will lose all her rights under that Act. I am sure all Members accept that the vast majority of people here are either PAYE workers, small farmers or unemployed and that they are all finding it difficult to live on their present incomes. If any of them apply to a court it is obvious that after a five year separation they will not be capable of making provision; a husband will not be capable of making provision for his wife and family. Therefore, this will fall to be dealt with by the State.

The Minister accused Deputy Woods of getting involved in the numbers game when the Deputy asked what level the breakdowns in marriage should reach before a Bill was brought in to deal with divorce. Deputy Woods did not say that but I must make the point that if divorce is introduced here the number of breakdowns will escalate. I do not think anybody believes that 50 marriages out of every 100 in America would break down, that more than 40 marriages in every 100 in Britain would break down or that there would be an escalation in the North of Ireland from a figure in 1970 of one marriage in every 40 to one marriage in every six 13 years later if those countries did not have divorce legislation.

In the event of divorce being introduced here, I am certain that a similar pattern will develop and that will cost the State a considerable amount of money. The basic element in all this is that the marriage must have failed. That is subjective. If a person goes to court and says, "my marriage has failed", I cannot see how a court can decide that the marriage has not failed. That person can then file for divorce even though the other spouse may not want divorce for a variety of reasons such as religious principles or a desire to ensure that he or she continues to have rights under the law. The problem will increase and the number of divorces will escalate.

In Britain and other countries where similar conditions were introduced the intention at the outset was that this should be a judicial rather than administrative procedure. In other words, the legislators did not want divorces granted simply by stamping a decree. Although the procedure in those countries appears to be judicial at present it is, in effect, administrative. Where there is agreement one spouse makes an application for divorce and, if the other spouse does not respond, the judge grants the decree which is delivered by post. The Minister is claiming that the conditions in the Bill will ensure that divorce will be of a restrictive nature but that has not worked in other countries. I have no doubt that it will not work here and that we will have divorce on demand.

Mr. O.J. Flanagan

There is an old saying and a very true one that children or fools should not meddle with edged tools. It is my view that the people will be very slow to allow anybody to tamper with a Constitution they cherish so much. If any other matter was being debated here it would pale into insignificance in comparison to the importance of changing the Constitution, the rules of the country. Changing the Constitution does not happen every day or in every country. Such a move should only take place when there is a grave emergency and necessity. There is no emergency or great necessity now but the fundamental rights of the people, the essence of democracy, are being challenged. The Constitution under which we live is about to be altered to remove the ban on divorce.

I put it sincerely to the Minister that experience has shown that, where the ban on divorce is removed, the numbers of marriage breakdowns escalate. In the event of either partner going to court and saying the marriage has failed, what machinery will the courts have to investigate that failure? The only evidence the judge will have is that given by one of the partners to the effect that the marriage has failed. What will the court have at its disposal to prove otherwise? Will witnesses be called? What assistance will the courts get in deciding this issue? Naturally, on the evidence given by one of the partners to the effect that the marriage had failed the judge will base his judgment. It is my view that this will be the most liberal form of divorce in the world. The Minister is being told that time and again by some of his own political friends. I should like to be classed as one of those. He is being told by theologians, experts, those who have already the experience, but they are all wrong and he appears to be right.

Time will tell that this will be the most liberal form of divorce in the world and the most dangerous form because it will be simple to obtain. Every single marriage of the 665,000 will be at risk where they are not at risk today. That is why the majority of those married couples will not buy a pig in a bag in relation to this constitutional change. It would put every home, every family, every married couple at risk. We must tell the people the truth. We are telling them what we believe or what we want them to believe. We must put the facts before them. Danger and disaster hang over every marriage once the constitutional ban on divorce is removed. There may be marriages that will resist the danger. There is now a barrier keeping marriages together, which has successfully done so with the exception of 6 per cent. The percentage of marriages which have broken down is very small compared with the 94 per cent which are functioning well and properly.

On 30 July 1985, the Leader of the House made a statement here to the effect that in view of certain parliamentary reforms he was going to arrange that every Bill introduced would be accompanied by a financial memorandum giving the cost of the Bill and of the legislation. Is it possible that we are changing the Constitution without having made any estimate of the cost? Have we not gone to the trouble of finding that out? This is not an ordinary Bill; it is a change of the rules. Surely it is the one occasion on which the Leader of the House should have seen to it that hand in hand with the Bill and the legislation there were accurately assessed costings, but that has not been done.

A few moments ago the Minister said he does not like figures being bandied about, taken at random and used. He referred to £200 million and a variety of other figures, wondering how those who use those figures arrived at them. I want to put it on record very briefly that you may take the population of the United Kingdom where it costs £1 billion to deal with their divorce problems, side payments and so forth. Compare that with our population, and divide one into the other and you will very quickly reach a figure somewhere in the region of £50 million and £70 million per year. The Minister for Social Welfare went to great pains last Friday to explain that all the social welfare benefits necessary will be available to the victims of divorce. Where will this additional £50 million or £70 million come from when at present unemployment assistance, unemployment benefits and even old age pensions in my constituency are being reduced? If the finance is not available to pay the full present rates of social welfare payments where will the extra money needed because of divorce come from? That has not been explained to the public.

All who cast their votes in the referendum for the removal of the ban on divorce will be tightening the noose around their necks as taxpayers. They will be handcuffing, blindfolding and gagging themselves and tying their ankles in knots. That is what they will be doing if they do not ask questions about the costs involved. That is the question that members of the Coalition Government are avoiding. I am not saying the Opposition are any better at giving us the facts, but it is not their responsibility. It is the responsibility of the Coalition Government. When the rules are being changed, the Government should tell the people the costs and, where these extraordinary sums will be required, where they will be found.

I do not think the ban on divorce will be removed because, like most Deputies, I have my ear close to the ground, but if the ban were removed it would mean the door would be open for divorce, obtained simply and easily by telling a judge there is a breakdown in the marriage and no hope of reconciliation. If in five to 20 years' time this House is comprised of members with the same mentality as the Minister for Justice and the Ministers for Health and Social Welfare, where will the people find themselves? What will become of our values which have been cherished by generation after generation, and which are about to be smashed up now if the people are sufficiently foolish to allow it? We cannot speak too strongly about this changing of the Constitution. We should be protecting the Constitution and teaching its kernel points to our young people, instead of taking pieces out of it to suit the permissiveness of the present times.

The one piece of advice I can give to the Coalition is to tell the truth in relation to what is at stake. The stability of every marriage in this country is at stake. That has been said outside this House by people not concerned with or interested in politics. The stability of marriage and the rocking of the foundations of the family as we know it are what are at stake. There is also the prohibitive costs which will smash this country overnight. I want to say this. The 1977 manifesto of the former Taoiseach, Mr. Lynch, will again fade into pale insignificance in comparison to the cost of this. That is why his manifesto almost broke the country, if it did not break it, but most certainly the costs involved in the removal of the ban on divorce would smash this country financially.

The final point I want to make is on the question of placing the facts before the people and telling them these truths between now and the end of June. There are many ways in which this can be done: the reading of the debates in this House and listening attentively to the speeches of the Divorce Action Group and the Anti-Divorce Action Group. I want to submit to you, a Leas-Cheann Comhairle and I wish to ask you as a custodian of the rights and privileges of Members of this House to actively interest yourself in this matter which I am raising. I wish to ask the Ceann Comhairle and the Leas-Cheann Comhairle of this House to investigate and report as a matter of special urgency the circumstances in which the Divorce Action Group are using free postage in Oireachtas free postage envelopes to send out literature and for the calling of meetings in their campaign for divorce.

The evidence is being submitted to the Clerk of Dáil Éireann. I consider it to be a serious breach of the privileges of this House. There was no Member's name connected with the postage of the circulars, but I am informed that very large numbers of Oireachtas free postage envelopes are used to further divorce propaganda and it should be ended by immediate action by the Committee on Procedure and Privileges. The Garda Síochána should be requested to investigate this matter. It is a misuse of the privileges of the Members of the Oireachtas. In addition, it is leading to fraud of the postal authorities. Free postage to promote divorce is a disgrace and this matter should be referred, first, to the Committee on Procedure and Privileges to meet with the least possible delay and then, to the Garda Síochána for suitable action.

I feel, Sir, that in view of the seriousness of this matter it is wrong that the Divorce Action Group should be using the facilities of Members of this House to call their meetings and to further the campaign of divorce. I am glad and happy to say that concrete evidence has been submitted to the Clerk of the Dáil. I ask that the relevant committee meet with the least possible delay to take action to end this matter before the end of this week because it is despicable and disgraceful that the Divorce Action Group should be using the facilities of Dáil Éireann. It cannot be but to the knowledge of Members of Dáil Éireann. I say shame on Members of the Dáil who would permit the privileges of this House to be handed over to a group of that kind for the purpose of advancing the interests of the divorce campaign. I hope and trust that it will be fully and sincerely investigated with the least possible delay.

Mr. Barrett

(Dublin North-West): I would like to thank you, a Leas-Cheann Comhairle for giving me the opportunity to make a few remarks. I would have liked to have come in during the debate on Second Stage but, unfortunately, due to the very limited amount of time and the speed with which the Government are putting this legislation through the House I and many other Deputies were not afforded that opportunity.

First of all, I want to refer to the fact that the Government have introduced this legislation because they feel there is a problem. If one has a problem the first thing one does is to try to investigate why the problem is there. I will give an example. If any of us here this evening was ill and decided to go to a doctor, we would expect that the first thing the doctor would do is examine us, diagnose the cause of our illness and give us some drugs or medicine to cure that illness. Unfortunately, the Government, placed in the same position as the doctor, are giving us, the patients, poison. They do not want to know what the problem is. We have to examine the problem to find the cause of marital breakdown and what is putting a strain on marriages. Unemployment is a serious problem which has been putting a great strain on marriage in recent years. Alcoholism is another reason why marriage is breaking down. Neither this Government nor any other Government, seem to have done anything to solve the problem of alcoholism. I am informed that we will be dealing with legislation in a few day's time to increase the hours in which alcohol will be available to people. The Government have already given licences to restaurants to sell alcohol up to 2 a.m.

These are problems the Government should be dealing with and not pushing this legislation through the Dáil. As Deputy Flanagan rightly says, if divorce is introduced, what is it going to cost the taxpayer? That has not been said at all.

The introduction of divorce will have a devastating effect on our society. It will increase the problem of marriage breakdown. It is true that divorced persons will lose constitutional rights, other legal rights will be weakened and the law will shift to support the second family to the disadvantage of the first family. This has been emphasised by a number of Deputies in this House.

I want to quote from the Statement on the Government's Intentions with regard to Marriage, Separation and Divorce, where it states in paragraph 2:

The purpose of this Statement is to describe in board terms the type of divorce legislation which the Government would submit for the consideration of the Oireachtas if the proposal being put in the Referendum is approved by the People. That legislation will be designed to ensure that divorce will be available only in limited circumstances...

Once divorce is introduced in any country it cannot be limited. This has been proved in other countries. Deputy Faulkner emphasised only a few minutes ago what has happened in England. That is very true. When divorce was introduced in England a five year period had to elapse before a case could be brought before the courts. In that case the details of how the marriage had broken down would have to be given. It would then be entirely up to the judge to decide the grounds for divorce. Pressure has been put on the British Government to reduce that period and Deputy Faulkner has outlined that. What has happened in recent years is that a number of cases are before the one divorce court. All the clerk of the court does is call out the names of the spouses and after each case the judge asks is there any objection. There could be as many as 40 to 50 cases before any court.

The latest thing on foot in Britain is to have divorce on demand. Pressure is being put on the British Government to introduce a system where the person who wants divorce can make an application, the same as one would make an application for a pension or anything else, to a Government Department, where the details will be put on the application form and where the person in the Department will make a decision as to whether the divorce will be granted or not.

The introduction of divorce law in any country makes marriage obsolete. It changes the concept of marriage. It is not longer for life. The legal fact is that divorce law gives to every person who marries the right to marry again under certain conditions. Such conditions may be very limited at first but from the history of divorce in other countries the conditions become wider and wider. The logical outcome is that eventually divorce is granted without substantial conditions. A person entering marriage has the right to get married again so there is no such legal concept as an indissoluble marriage. The legal concept and the position of marriage change. The law supports what is a temporary contractual relationship. Marriage as a lifetime relationship is legally obsolete. This, in turn, brings about a social and psychological conditioning. We can see the process at work in countries where divorce laws have been in existence long enough for a pattern to have emerged.

If divorce is granted as a civil right, how can such a right be denied to one person and given to another? When divorce laws were introduced in England the first divorce law was for husbands only on grounds of adultery. In 1923 the Divorce Act included wives on grounds of adultery. The 1937 Act included desertion, cruelty and insanity. The 1969 Divorce Act included grounds for divorce after irretrievable breakdown of the marriage. The application for divorce by one partner against the wishes of the other was allowed after a period of separation. In the United States all but one State have no fault divorce legislation.

The prevailing opinion among lawyers and legislators is that a no fault based divorce law is harmful and vindictive to spouses concerned. It serves no purpose. Therefore the international trend will be towards a no fault divorce system. I will give an example of a pattern that followed the introduction of divorce in England. In 1920 there were 2,953 divorces in England; in 1935, 4,784; in 1945, 16,075; in 1961, 19,000; in 1972, 110,700; and in 1981 there were over 200,000 divorces. When divorce law was introduced in England it did nothing to help marriage breakdown. In fact, it had the opposite effect. In 1977 the European divorce rate was one in every five. For all who accept the teaching of the Catholic Church divorce with the right to remarry is not permitted. In fact, it is impossible.

Mr. Shatter

What about the rights of minorities? Are they irrelevant?

Mr. Barrett

(Dublin North-West): If a Catholic partner obtains a divorce, under the law of the Catholic Church he or she is not permitted to remarry. Divorce is a claim by the State to be able, through civil law in the courts, to dissolve a valid marriage. This leaves couples free to remarry. A Catholic marriage is a sacrament. It does not permit spouses who are married in a Catholic Church to remarry. The bond uniting married couples is a sacramental bond which comes from God alone and no person can pull that bond asunder. No legislative enactment can dissolve a valid marriage and leave the partners free to marry again. Remarriage of a civil divorced person is not a real marriage in the eyes of God.

This debate raises the question of public welfare and the common good. It raises the question of public and private morality. The Catholic Church's stand on matters concerning law and morality has been stated frequently. It has been consistent in all debates on divorce legislation. The Catholic Church have never asked that their doctrines should be enshrined in law as they recognise that morality and civil law do not coincide. Nevertheless, when moral issues which affect society are raised, such as divorce, the bishops and clergy have the responsibility to offer moral guidance to Catholics to help them inform their consciences in respect of their moral responsibilities.

Most religions regard the concept of marriage as sacred and special. The Catholic religion sees it as a calling, a vocation and a sacrament. This approach is a guarantee against marriage breakdown. The State must support that concept of marriage as a lifelong commitment. I will quote from the former Minister for Health and Social Welfare in 1973:

We in Ireland esteem the family as a source of many social and personal values. We believe the family to be the basic unit of society. It is not enough, however, merely to state the value we place in the family as an institution. We must go beyond that statement and deliberately create policies and programmes which reflect the value in humane terms.

That statement very much contradicts the present policies of his party. I wonder if he was here now would he agree with these policies.

When the Pope was in Ireland he placed great emphasis on the family. He stated in Limerick that the family had been Ireland's greatest spiritual resource and the greatest spiritual influence on Ireland in the history of the world. This has been due to a great degree to the homes of Ireland. He said, may the Irish always support marriage through personal commitment and through social and legal action.

Mr. J. Doyle

I would like to have an opportunity to make a Second Stage speech but I do not intend to make one now.

An Leas-Cheann Comhairle

The Deputy is entitled to speak on the Schedule which embodies all the aspects of the amendment, in case he might think other people were not speaking correctly.

Mr. J. Doyle

Listening to Deputy Flanagan I thought we had reached the stage where we would get divorce through the post. He said 94 per cent of Irish marriages are at risk. This casts a terrible aspersion on Irish marriages. I want to refer to the Catholic concept of marriage and other concepts. My colleague, Deputy Shatter, will have a very deep concept of it from his religious point of view. St. Paul said that when people are happily married it is not a union of two people but the union became one. That is a lovely idea of a happy marriage. I am sure many people in Ireland experience that kind of marriage. Any legislation passed by this House will not put that kind of union at risk because it is a permanent union. There is no doubt in my mind that a number of marriages have failed. Whether or not divorce is introduced this will continue. We have the problem of second unions arising from that. If we do not address ourselves to that, the law will fall into disrepute. I am afraid that is happening already.

Deputy Flanagan said that divorce gives respectability to adultery. I regret to have to say that it is society, in a limited way, by its behaviour that is giving respectability to adultery. We must consider that as well. I would not accuse Members opposite of being mischievous but I fail to understand some of their arguments, particularly about permanancy of marriage and what has happened in England and other jurisdictions. In those jurisdictions there is no written constitution. An eminent member of the Bench here once told me that a Labour Attorney General in Britain, Sir Hartley Shawcross, once said that if the British Parliament passed a law that all blue eyed babies were to be slaughtered at birth, so be it. If we passed that kind of law it would be struck down immediately by the Supreme Court.

We must be mindful of that during this debate. I do not think Deputies Faulkner and Barrett were conscious of the restrictions our Constitution puts on statute law. Every law we pass must comply with the Constitution and its restrictions. This Schedule is putting to the people a very restrictive measure. I am glad the Minister pointed out the protections for children in marriage. The Minister clearly told us that the children of first marriages will have the same constitutional right as heretofore. If a country has not got a written constitution it has to operate by convention. We are most fortunate to have a very detailed written Constitution with which our statute law must conform.

I will refer briefly to what the Minister said about nullity. I am pleased the Government have decided to review the law of nullity and broaden that law, as recommended by The Law Reform Commission. I do not subscribe to the idea that annulment is divorce under another name, but we must be honest with each other. I have never heard of a happily married couple going to the church or the civil courts to test the validity of their marriage because they were worried about it. They go to either court only when there is a breakdown in their marriage.

Mr. D. Andrews

Listening to the most recent contributions on both sides I wonder if Deputies on both sides appreciated that we are a republican parliamentary assembly and not an assembly of any Church. Do we realise, no matter what views we hold, that we are not here as moral standard bearers but as legislators on behalf of everybody? As I said here frequently, and as recently as November when we discussed the report of the joint committee, we legislate for everybody, whether they are Catholic, Protestant and so on.

I am not apologising for being a Catholic, but I often wonder where Deputies speeches come from, whether some Deputies are being "used". It would horrify me to think that that is happening because Deputies should come in here to lead, not to be led — they should make up their own minds, having given serious consideration to the serious issues that confront us every day.

It is unfortunate that there appears to be an element of politics intruding itself into the debate. I strongly urge that the Fine Gael and Labour Parties opposite would be very careful in the manner in which they campaign. I have already said that they should not campaign, that this matter should be outside politics. It is not an issue for political campaigning. If we present ourselves at doors during this campaign as Members of the Oireachtas, we will be presenting ourselves as politicians and we should not try to get away from that.

What I am saying is that the Government are making a very serious mistake in campaigning for this issue. I appreciate that as a Government they have to address themselves to the people, but in campaigning as political parties they are making a mistake. I suggest that the Taoiseach should address the nation on television and radio on one or two occasions and that the Government, as distinct from the political parties, should issue literature setting out the pros and cons of the amendment. That is how the campaign should be conducted.

If members of Fine Gael or Labour were to call to my home — they know my views on this because I am a public representative and I do not hide my views and I am not afraid to let people know my views whether they want to know them or not — they will be treated with great courtesy. I will remind them that this is a private moral issue, that they should not be at my door and, with the utmost courtesy, I will ask them to leave. Political parties and politicians, as part of the fabric of our society, are entitled to proclaim their views on matters other than this issue. That would be my reaction to visits from members of any political party.

A number of reasonable and responsible reporters have suggested to me that in some way the thrust of the original decision of the Fianna Fáil Parliamentary Party has changed. That is not so. The Leader of my party has indicated his views on the subject, as he is entitled to. Our spokesman on Justice also has expressed his views on the matter, as he is entitled to. Deputies O'Hanlon, Flynn and Faulkner have expressed their views. Quite clearly they are against the proposal of the Government.

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

Progress reported; Committee to sit again.

Dáil Éireann debate - Wednesday, 21 May 1986

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

Mr. Cowen

Mr. Cowen

Mr. Cowen

Mr. Cowen

Mr. Cowen

Mr. Cowen

Mr. Cowen

Mr. Cowen

Mr. Cowen

Dáil Éireann debate -
Wednesday, 21 May 1986