To take Deputy Enright's last point, he is right in that the judge will have to decide many things under the legislation as it is before us. There will be considerable difficulty in that respect.
I wish to refer briefly to the contribution made by Deputy Shatter, particularly in relation to the first family. From what he said it is absolutely clear that the constitutional rights will be conferred on the second family. In his view they will not apply to the first family. He said that this is a natural enough situation. I referred to the circumstances of broken families earlier today when I asked the Minister to consider, in the context of the drafting of this amendment, the position of the family which is left behind and the difficulties which arise in relation to the family home. It seems quite clear that their rights within the Constitution, in the limited circumstances mentioned by Deputy Shatter and also in any other circumstances which arise, will be transferred to the second family. The Minister did not get a chance to come back to that but Deputy Shatter dealt with it to him.
I trust that the Minister accepts that the final provision in the divorce proposal sets out to make the granting of a divorce conditional on the making of proper provision. It states in the last section, "the court is satisfied that adequate and proper provision is made having regard to the circumstances." This applies to the dependent spouse and children. I take it that the Minister is aware that there is similar provision in divorce legislation in most countries and also that the number of examples of cases in which a divorce has been refused because proper provision was not made is very rare indeed.
We have to congratulateThe Irish Times for a very useful article by Joe Carroll on Monday, 19 May. On researching some of the points arising in last week's debate he found there were three cases since 1969 in which a hardship clause was applied and in which divorces were refused because of this hardship clause. There was none in Northern Ireland at any time. He found that Lord Simon, former President of the Divorce Division of the English High Court, said that the Northern Ireland divorce order, like the English 1969 Act, is utterly unjust to married women in relation to the hardship provision.
The words "making of adequate provision" do not seem to have the force that the Minister has suggested. That being so, is it not the case that this provision realistically cannot be relied on or restored to ensure that dependent spouses and children will be properly provided for? Would the Minister accept that this provision is purported to operate as a condition of the granting of a divorce, but once the divorce has been granted will the provision not become redundant? Would the Minister accept that this provision in so far as it will have any real effect will have only a once for all effect, at the date of the divorce, and cannot operate later or be relied on later to make any provision for a dependent spouse or child? If a change in circumstances occurred afterwards it could not be invoked as a means of putting matters right.
Would the Minister accept that in so far as this provision will have any effect even at the date of divorce, the effect will be limited to dependent spouses and only then, that it would exclude a working wife or a wife capable of working at the time of the divorce? Does the Minister accept that when a marriage is dissolved the foundation of that marriage will have gone and, therefore, Article 41 will no longer apply to that family? That is a very important question. I asked the Minister earlier because marriage based on the family means that the family is based on marriage, if the marriage is dissolved what is the position of the family subsequently? If the Minister does not accept that that is the case, how would Articles 41 and 42 continue to apply to a divorced family when the foundation of that family through marriage has been dissolved?
We can take an example of what may happen in relation to the family home. If a married man is earning £15,000 a year and has three children and lives in an average suburban semi-detached house worth £35,000 on which there is a mortgage of £18,000, and he gets divorced and remarries and has two children by the second wife, what will happen to the family home of the first family. How will it be defined at that stage? The Family Home Protection Act provides that the family home cannot be sold without the written consent of either spouse. Clearly, on the income of this man he could not afford to buy a second house for his new family.
What will happen in those circumstances? Are the first family to be allowed to continue to live in the family home notwithstanding that it may be jointly owned or owned wholly by the first husband? Can the Minister say if he intends to leave the Family Home Protection Act as it is, and if so, does it not follow that in the event of a divorce the protection of the Act would no longer extend to the divorced wife, she having ceased to be his spouse? In such a case the sale of the family home could be forced on the divorced wife.
Does the Minister intend to amend this Act to include the divorced spouse, and if so, would he agree that notwithstanding his good intentions such an amendment to the Act would be likely to have the effect of keeping the first or divorced family in a house and the second family out of one? In those circumstances would the Minister accept that the State through its legislation would be failing in its pledge to guard with special care second marriages, which would be undoubtedly protected by Article 41? Therefore, would the Minister not accept that such a provision in the legislation would be likely to be struck down on the grounds that it was unconstitutional? The wife has no beneficial interest in the house. She might get no interest, or only a 30 per cent interest, when a decision would be made about the home. All she would have is a right of tenure in the home. Where then, would the second wife's family home be? She could claim her right to a family home. It probably means there would be need for a whole new community property law in which the wife would get half of everything. Therefore, the Minister may need to re-define "family home". Once a husband leaves, the home would not be regarded as the family home.
Then we come to the question of maintenance after divorce. If a man earns £12,000 and is married with three children and gets divorced, remarried and has two or three children by the second marriage, what will happen in relation to the maintenance of both families? Under the Family Law (Maintenance of Spouses and Children) Act, 1976, the spouse has a right to a maintenance order when there is failure to maintain. Does the Minister intend to amend that Act to include in its scope a divorced spouse, and does he intend to cater for a divorced spouse on the same basis as the lawful spouse? Has the Minister considered what will happen if there were a competition between the two families for the very limited income? Clearly, after tax and other outgoings, there would not be enough left to support both families.
In so far as the Minister may intend eventually to provide even-handed maintenance rights in legislation to deal with both families, would he consider it inevitable that the second family, relying on their undoubted protection under Article 41, would challenge the legislation on the obvious basis that its had failed to fulfil the State's pledge to the second family, now founded on marriage, to guard it with special care and protect it from attack?
These are two of the areas that could be affected. In relation to dependent spouses, it has been made very clear in the course of the debate that there is no constitutional protection for a non-dependent spouse, including, possibly, a teacher, secretary or any other working spouse, even though she may be earning far less than the other spouse. It has been made clear, too, that there would be no inheritance rights at all for a wife or husband. The Minister said allowance will be made for loss of inheritance rights, but no guarantee has been given in this constitutional amendment in relation to inheritance.
How can the courts assess a sum for compensation when the value of an inheritance would be assessed at the date of death of the spouse? In the Government's statement of intentions document there is no reference to any provision for compensation for loss of inheritance rights and the Minister's suggestion earlier today seems to be nothing more than a form of words to cover up the fact that the divorced wife will lose her inheritance rights even when by her efforts she has directly or indirectly contributed to or made possible the development of a farm or business or the acquisition of material assets by the husband. The element of compensation is important in that respect, but there is no provision in this amendment for it though there is need for a provision for such matters. The Minister has failed totally to deal with the rights of a spouse who, in the example given, has assisted her husband in running and building up his farm or business as security for their future well-being.
This is not compensation for inheritance rights. It requires a constitutional protection for the right to share in the future income from the farm or business that without the help of the wife would not have achieved the same degree of success. On the basis of the proposed amendment the husband will retain his constitutional property rights in the farm, or business, or other assets which he accrues and of which he cannot be deprived but the wife, to be divorced and abandoned by him when he so decides, has no recognition and no constitutional right for the the contribution she has made during ten, 20 or 30 years. Such contribution could stem indirectly from the fact that the wife had given up her career to pursue the job of looking after and supporting the family in the home, thus releasing the husband to work at his business, farm or his career. It could also stem directly from working long hours on the farm. Failure to make a constitutional provision to protect the spouse in these circumstances is regrettable. Legal advice I have had is that the matter cannot be catered for properly in legislation, least of all by something that, according to the Minister, would give some kind of nebulous compensation for loss of what she might have received on the death of her former husband at a future date.
Will the Minister state how and in what terms it is possible to calculate in money terms the loss of inheritance rights of a spouse at any given date? Will he state the criteria and the factors to be used in making such a calculation? Will he say the basis on which the assets of the spouse will be calculated and the means to do that? Will he say how he proposes the courts should calculate the value to a spouse of his or her loss of inheritance rights as at the date of divorce and as of the date of death of the other spouse? If the Minister cannot calculate or have a means of calculating these matters, how can be expect the courts subsequently to do so?
The Minister has said that provision in separation deeds is commonly made to provide for abandonment of inheritance rights. It is also common for them not to do so. In the cases that will follow the proposed amendment, all spouses in all cases would lose their rights. In any case, special considerations are negotiated usually by the wife, using her inheritance rights as a self-protecting bargaining power. As a result of this amendment she will have no such power. She will have no constitutional right in that respect.
The Minister said that in divorcea mensa et thoro the spouse loses inheritance rights. Yes, that is so because the spouse is the guilty party in a decree granted on the basis of fault but in this instance the innocent spouse can lose rights. In relation to the matter of succession, the wife loses her rights on the day she is divorced. There is no constitutional requirement or protection for her to be awarded part of a farm or inheritance. There is no corresponding protection for the first wife on the dissolution of marriage, following the amendment put before us by the Minister.
Under the present law where there is no will, a widow gets two-thirds while the balance goes to the children and if there are no children the widow gets 100 per cent. If there is a will the widow gets one-third when there are children involved and she gets one-half where there are no children. In all cases she can opt for the family home in whole or in part discharge of her rights. How does one compensate a person for future inheritance? Perhaps the wife gave up her career to contribute to the farm and to its development, although the farm is in the name of her husband. Should wives now get farms, businesses and other assets placed in joint names? Is that the wise procedure to take at this stage since the Minister has accepted fully that the wife will lose her inheritance rights?
With regard to orders relating to property, will the Minister indicate clearly the scope and type of orders he envisages the court may make in relation to property where a marriage is dissolved? In the statement of intent he refers to the intention to make such orders. Will he set out clearly the guiding principles, or is it the case that there will be no guiding principles? We have asked the Minister many questions in the past few days but he did not seem to think there would be any guiding principles and that really it would be a matter for the courts and the Judiciary to decide these matters. If that is the case, we have here another issue on which the Minister has not given any guiding principles. Is it the case that a Circuit Court judge would have an unfettered jurisdiction to carve up and dispose of the property in any way he sees fit? Will there be some constitutional control in relation to property? The Minister must answer all of these questions.
Will the Minister not agree that such situations could have serious implications for the farming community? For instance, a farm that has been in a family for generations could, at the totally unrestrained discretion of a Circuit Court judge, be taken from that family and given in whole or in part to a person who might have married into the family solely to claim the property upon the dissolution of the marriage. Has the Minister considered the effect on Article 43 of the Constitution which deals with the right to private property? Has he taken advice on the matter and, if so, can he tell us the nature of that advice?
I have mentioned only some of the issues that arise as a result of the amendment and that need clarification and discussion. Many more issues could be raised but because of the time limitation it will not be possible to discuss them fully here and that is regrettable. The change proposed in the Constitution will have wide-ranging effects on these matters. They should be fully considered in this House so that the necessary measures can be taken.
The only constitutional provision in the proposed amendment in relation to children is for proper provision having regard to the circumstances. There is no mention of the health, the emotional or physical state of the children or their welfare generally. Unlike legislation that deals with children, their adoption, care, custody and their interests are not safeguarded as the first and paramount consideration. They are given virtually no consideration in this amendment. The court will only be concerned with proper provision for them in the circumstances. The mental or physical health of the children or their welfare is not a precondition to a dissolution of a marriage. It is put down as a precondition. The text clearly contemplates that the right to divorce is the primary consideration and, once the preliminary conditions have been satisfied, it must be granted by the court, doing the best it can for dependent spouse and children.
However, if the circumstances are such that serious injury will inevitably be caused to the emotional or physical health of the child, the divorce will be granted since there is no precondition to protect the child's health or welfare. Since no provision can be made for the child in the circumstances, nothing further can be done. If the Minister seriously intended that adequate and proper provision for the spouse and children should be made a precondition for the granting of divorce then further conditions should have been inserted stating that the court would also have to be satisfied that adequate and proper provision had been made for any spouse or child and that no material injury to the health and welfare of the children would result as a consequence of the divorce. It seems as if children are being given little protection under the amendment.
It is clear that the children of the second marriage will enjoy all the constitutional guarantees given to the family based on marriage. It would be possible for some future law to discriminate in favour of the children of the second marriage to the disadvantage of those of the first marriage since they would enjoy the special protection afforded to the family under the Constitution.
These are some of the questions that come to mind. Obviously there are other matters which could have been discussed in detail and perhaps the Minister might have been able to make changes in the amendment which has been put forward. I trust he listened to what was said here yesterday and today about the terms of the amendment, for example, the use of the word "failed" and the reasonable possibility of reconciliation and also the "adequate and proper provision having regard to the circumstances". Most of these are terms which in other jurisdictions have proved not to be the strong restrictive kind of terms the Minister suggests they are. Several Deputies referred to these matters and assumed there would be a Report Stage Debate and that the Minister would take their views into consideration. In effect, Committee Stage and Report Stage were taken together. That is regrettable on such a major and serious constitutional amendment.
The Minister has made it clear that social welfare benefits will change. The person who is divorced will lose benefits and will be dependent on social assistance. There are a number of implications in this. It could mean substantial loss of income per week. It raises major questions about the provision of pension rights in relation to pensions, PRSI and so on. It does not seem as if the Minister has given these matters much consideration. He does not seem to be anxious to respond to these questions or give his views in a forthright way on the likely financial consequences for the family. A deserted wife who receives benefit now and all that goes with it, will no longer be regarded as deserted if her husband divorces her. She will only receive an allowance which will be means tested.
I regret that Members did not have time to contribute. I know that many were anxious to do so. I did not have time to tease out these matters in detail with the Minister. We did not have the normal process which takes place during Committee Stage whereby matters raised are considered by the Minister and replied to on Report Stage. It seems as if the Minister did not have any intention of changing the amendment before us. His mind was made up and it was just a question of bringing this before the House and having it passed. Many people made reasoned arguments about safeguards which could have been provided but the Minister seems to have a predetermined view in relation to these matters and passed off the reasonable concerns which people have as if they did not exist.
This is an important amendment which deserves the fullest possible consideration. The way in which it has been treated is not satisfactory and I regret that. We have made our position clear in relation to this amendment. We have discussed it as fully as we could and we will now leave the matter to the people to decide. Presumably the Minister will speak on platforms. I do not know if he is one of the directors of the campaign which is being launched. Our position is different in that we are not participating in any political campaign. We have discussed the amendment fully and maturely. It is one of the most fundamental and important constitutional issues to come before the House. When one considers how fundamental and important the issue is, it is a little sad that the whole process has been somewhat truncated and the time which could have been available for it——