I hope it will not take us as long to discuss this matter as it did the question of failure or breakdown yesterday. The purpose of the amendment is to delete "possibility" and substitute "likelihood". Use of the word "possibility" may prove very difficult when courts are discussing whether it is possible that two people can be reconciled. Anything that is not impossible is possible. I wonder could we have some order in the House.
An Bille um an Deichiú Leasú ar an mBunreacht, 1986: An Coiste (Atógáil). Tenth Amendment of the Constitution Bill, 1986: Committee Stage (Resumed).
Atógadh an díospoireacht ar an leasú Uimh. 3:
I gCuid I, leathanach 7, líne 3, "nach féidir le réasún bheith ag súil le comhréiteach" a scriosadh agus "nach dóigh le réasún go mbeidh comhréiteach ann" a chur ina ionad
agus
I gCuid II, leathanach 7, líne 18, "possibility" a scriosadh agus "likelihood" a chur ina ionad.
Debate resumed on amendment No. 3:
In Part I, page 6, line 3, to delete "nach féidir le réasún bheith ar súil le comhréiteach" and substitute "nach dóigh le réasún go mbeidh comhréiteach ann"
and
In Part II, page 6, line 19, to delete "possibility" and substitute `likelihood".
—(Deputy Harney)
Will Deputies who are not taking part in the debate, one way or the other, please leave the House quietly.
Use of the word "likelihood" would prevent people from dreaming up fanciful arguments to advance their case. The word excludes any contrived possibility. There is always the possibility of a possibility. "Possibility" is not very definite. I understand that generally in law the words is never used, that words like "likelihood" are used instead. "Likelihood" would be a more acceptable term and it would allow the courts to establish more clearly whether two people would be likely to be reconciled. Many lawyers, arguing for the party against a divorce would be able to advance very fanciful arguments to suggest that it is not impossible that the two people would be reconciled and therefore, if it is not impossible, it must be considered to be reasonably possible. It is in order not to make divorce totally impossible, in order to provide for dissolution and to allow people to remarry that I believe the substitution of this word is desirable and more acceptable.
Whereas I had some measure of agreement in regard to Deputy Harney's amendment yesterday, I find myself at variance with the Deputy this morning. I reiterate my view that the Government, in deciding on this form of words and deciding to put it into the Constitution by way of amendment as distinct from merely removing the constitutional ban on divorce, wish to win over a large section of the people who favour divorce and would approve of it only in very restricted, limited circumstances. If that is the objective of the Government — and I believe it is — then the words used here are of paramount importance.
I wish to clear up some apparent difference between my position and what I think the Minister thinks is my position. When I speak of a majority of people in this regard I am speaking of a majority of people who favour divorce as distinct from a majority in the community. I am speaking of a majority of those who have indicated in some form or other in one of the many surveys and polls that they would be prepared to accept divorce. The majority of those people have indicated they would accept divorce only in very stringent, limited circumstances. I believe these words have been put into the amendment in order to seek approval of that section.
Yesterday I asked that we should look at each of the four paragraphs separately and each on its own merits. The court will address itself to each of the four criteria. Here I differ considerably from Deputy Shatter, the Minister and others who spoke yesterday who wished to amalgamate the four paragraphs and read them as one. My view is that each is a separate question to which the court will address itself. These are four separate criteria and the court will address itself to each one separately and indicate a yes or no in regard to each of them.
The words in paragraph iii are of such vague character as to be rather meaningless. The Minister differs totally with me on this and he relies very heavily on paragraph iii to support his approach. Most of us agreed yesterday that the word "failed" is not a satisfactory word, that it does not have the quality of finality most of us would wish to have included here. However, in response to that the Minister said that whatever about the virtue of the word "failed" we must also look at paragraph iii, that between them they make for a very strong position. I think that is a fair summary of his position. Therefore, it behoves us to look closely at paragraph iii.
The first word I would look at there is "reasonable". I cannot understand why that word is inserted. If the Minister wishes to rely on paragraph iii as something very strong and powerful in support of his position, surely the word "reasonable" should be left out and paragraph iii should read, "there is no possibility of reconciliation between the parties to the marriage". By introducing the word "reasonable" we throw the gates wide open. Again, we are back to the subjective situation that Deputy Harney and others spoke about yesterday, where on person's interpretation of "reasonable" can be very different from somebody else's interpretation. If the Minister is trying to persuade us that this is a very strong, powerful and restrictive provision, he should have left out the word "reasonable" altogether. There is a corollary between the argument on this amendment and that of yesterday. Deputy Harney wishes to substitute the word "likelihood" for "possibility" but I should prefer to remove the word "reasonable". In that case the paragraph would be definitive. It would deal with a position of finality — a marriage has broken down and there is no possibility, hope or prospect of its ever being put together again.
I should think that is something that would commend itself to most of the Deputies here who favour divorce in limited circumstances. They would favour the situation in which divorce would be permitted where it was clear beyond any possible doubt that the marriage could not be put together again, that it had failed finally and completely. From that point of view I argue that rather than substituting the word "likelihood" for "possibility" we should remove the word "reasonable" from the sentence.
In this amendment Deputy Harney may be going against the thrust of her arguments yesterday. Yesterday she wanted the phrase "irretrievable breakdown" because it was a stronger, more definite and more conclusive phrase than the word "failure". However, this morning she seems to be going in the opposite direction, weakening the form of words in the amendment. There is no doubt that in this connection "likelihood" is a much weaker word than "possibility". If the Minister wishes to get approval for change from that section of the community and Deputies here to whom I have referred, the most persuasive thing he could do would be to remove the word "reasonable" from paragraph iii.
We discussed paragraph iii yesterday in the context of the word "failure". In case there is any other impression given in the media, I must repeat that I regard the word "failure" as a weak word and one that sets a low threshold. Last night I set out the reasons why I thought the word was so weak.
In discussing the matter the Minister drew our attention to paragraph iii and he pointed out that there was the added clause of "no reasonable possibility of reconciliation". We spent some time discussing what that might mean in practice, when the phrase could become an empty form of words. Following what the Minister said yesterday, I have checked with legal people and there is no doubt in my mind that in practice that form of words is very weak and will not have the effect the Minister expects.
Having said that, I recognise that if the term "reasonable" were deleted there would have to be something more definitive, that is, "no possibility of reconciliation". I also recognise that to replace "possibility" with the word "likelihood" would put an extra onus on the defending spouse to show the likelihood or possibility of reconciliation. In that sense it would give less protection to the existing marriage. While in my view the protection for existing marriage is very weak as it stands, I would concede to the Minister that the amendment proposed by Deputy Harney would give even less protection because it would mean that the defending spouse would have to show probability of successful reconciliation. The proposed use of the word "likelihood" is not desirable.
The section itself is very weak. It does not give the strength the Minister believes it to give. That can only be seen in practice in the long run but it is there to be seen in most of the jurisdictions which have divorce. Having participated in the Oireachtas Joint Committee on Marriage Breakdown for quite a period, it was very clear to us that such terms are an empty form of words. I know they are well intended but in practice that is how it works out. The fact that it is in the Constitution will not change its application. I accept that it cannot be set aside but it will not change the normal interpretation or usage of those words. Consequently, it is very weak as a safeguard.
I would remind the House that each and every one of the conditions in this proposed amendment is governed by the first sentence which states:
Where, and only where, such court established under this Constitution as may be prescribed by law is satisfied that——
In this case the court would have to be satisfied that there is no reasonable possibility of reconciliation between the parties to the marriage. I find it a little bit out of keeping with the spirit of the debate that we should spend a lot of time with Deputy Woods simply making assertions that take no account of any discussion we have had over the past couple of days.
The third condition is governed by the requirement that the court be satisfied that there is no reasonable possibility. The court, looking at the matter in a reasonable way, must decide that there is no possibility in any practical sense that the parties to the marriage will come together again. In approaching this we would all distinguish between a reasonable possibility and a remote or fanciful possibility. If the court believed that any possibility of reconciliation that might be represented to the court was remote or fanciful, it would conclude that there was no reasonable possibility. It would exclude such remote or fanciful possibility from its consideration.
If we were to substitute the word "likelihood" for "possibility", as Deputy Harney has proposed, that would impose a less strict requirement on a person seeking divorce. On that, if on no other point, I am in agreement with Deputy Haughey and Deputy Woods. Such a substitution would weaken the provision. It would be sufficient to show, for example, in order to get a divorce that it would be highly unlikely that there would be a reconciliation of any kind. That would be much easier to show than that there was no reasonable possibility.
Not even highly unlikely, just unlikely.
I am putting the argument in its darker colours to give it emphasis. If we were to remove the word "reasonable", which has been proposed, although I note that there is no amendment to that effect, no divorce would ever be granted because it would be impossible ever to show conclusively that there was no possibility of something coming about. In that case I do not think a court could ever be satisfied, as it is required to be by this amendment, that there is no possibility whatever and it would therefore find itself in the position of never being able to grant a divorce. Absolutes in those terms are very rarely found in human behaviour. I would not accept Deputy Harney's proposal because it would weaken the provision I have proposed. Nor could I accept Deputy Haughey's proposal because that would make the condition inoperable and bring about a situation where we could not in any circumstances see a divorce being granted.
I would again like to pay tribute to Deputy Mary Harney for introducing the "unlikely" amendment. I appreciate that she has again given us an opportunity to hang our arguments on some formula of words. I do not agree with the amendment. As has been argued by the Minister, by Deputy Haughey and by Deputy Woods, the intrusion of the word "likelihood" would make the requirement less strict and would dilute to some considerable degree the provision before us. It would weaken the provision. I say that with respect to Deputy Harney's amendment. It is important that we have the amendment and the opportunity of teasing out the meaning of words. We also have to take account of the likely effect of the words on the provisions before us. I agree too with Deputy Haughey that if the Minister seeks to achieve what he wants to achieve, the passage of this Bill and the putting of it into effect, the removal of the word "reasonable" is a proper suggestion. The third paragraph would thus state that "there is no possibility of reconciliation between the parties to the marriage".
While the Minister is entitled to make the point that the courts would have difficulty in interpreting the section with the word "reasonable" removed, that is a matter of opinion. We return then to the first sentence which states:
Where, and only where, such court established under this Constitution as may be prescribed by law is satisfied that——
It is a matter of satisfying the court and convincing the presiding judge of the efficacy of the law interpreted against the amended Article in the Constitution. I would see absolutely no reasonable grounds for the Minister's suggestion. I think it would give finality. There is an air of finality about the phrase "There is no possibility". I want to see the amendment passed and I want to see the referendum succeed. But, in achieving that, I want to present to the people a reasonable, understandable and comprehensive amendment. So I would suggest that the proposal by Deputy Haughey is a reasonable proposal, that it introduces finality where, after all, finality is sought. When we are talking about Church annulments we are talking about a situation where the Church says a marriage never existed. If we are talking about State law, we are seeking to introduce divorce where, while a marriage has existed, it now ceases to exist, and that is what finality is all about. Therefore I would ask the Minister to have a new look at the removal of the word between now and the Report Stage.
I do not look forward to a society in which one can abandon one's partner who has put total trust in one and in whom one stakes so much of one's life. I do not look forward to a society in which a wife or husband or children can be easily abandoned and left in difficult circumstances and wounded in their personalities. But life is difficult and all things do not always work out as we had planned. We are faced with marital breakdown and we have to address ourselves to that problem. In doing that we have to find a form of words which will not destabilise society. That form of words has to be as restrictive as possible. The Irish people showed in the polls that that is the kind of legislation they will vote for. If these words can be improved upon I will be happy about it. But certainly the introduction of the word, "likelihood" instead of "possibility" is a watering down of the meaning and for that reason I could not support the amendment of Deputy Harney.
I am concerned that the drift of the debate so far, in relation to the teasing out of the legal definitions of these words, is towards a hardening of the view that we should make this amendment so restrictive that it would be virtually impossible for a person whose marriage has genuinely broken down to actually get a divorce. The purpose of the exercise we are engaged in should be to assist those whose marriages have broken down. The remarks of Deputies Haughey, Woods and Doyle and of the Minister would seem to indicate that we should make this thing so tight that it would only be the very rare case that will succeed in actually achieving a divorce in our courts. That seems to fly in the face of the opinion expressed through opinion polls, certainly by my own constituents, who see the need in their day to day lives for a situation where a person can go to court if necessary and declare that his marriage has broken down and that the various legislative strictures which are being proposed in the legislation later on have been met and that the court will grant them a dissolution of their marriage.
If we continue on the lines of arguing that the words "possiblility" and "reasonable possibility" and "failed" will provide for an extremely restrictive access to divorce, then we are defeating the purpose of bringing in an amendement to the Constitution at all. I would like the Minister therefore to indicate to us examples of the kind of reasonable possibility which would be acceptable as grounds for divorce when this amendment goes through. It seems — and it has been said before in the course of this Committee Stage debate — that what we may be doing by giving too restrictive an interpretation of this amendment is creating a legal quagmire that the legal profession on both sides will spend possibly years trying to tease out. I have heard it said that in many cases judges take into account the views expressed in the Dáil when legislation is going through. I do not know whether that is correct or not — it is just a layman's reading of the situation. But, if that is so, I would be extremely concerned that we are setting a headline here which would make it virtually impossible for those who need divorce to actually get divorce, despite the fact that the people may have passed the amendment.
I would like to say a few words in support of Deputy Harney's amendment. I am disappointed to see the reaction to it from the Minister and from others. It would seem to me to be an amendment that on the face of it should be acceptable to people taking a reasonable view of this whole question. Indeed, I am disturbed by attitudes which seem to be coming through in this debate which would seem to suggest that there are Deputies who, while accepting the basic principle that the question of repeal on the ban on divorce should be put before the people, are ensuring that in the Bill there are conditions which are so extremely restrictive that, quite honestly, I wonder how this is going to operate in practice.
Of the restrictions of which there are many, I think this word "possibility" may well be one of the most important, because if a judge reads this provision literally, as he must and he cannot take account of views expressed here or elsewhere, he could quite easily come to the conclusion in his own mind that only in the most exceptional circumstances is there no reasonable possibility of reconciliation at some time in the future. The word "likelihood" is a less extreme word. I would suggest that it is a more normal word in this context and it is the kind of word that one would more normally get in a provision of this kind. I cannot think offhand of many occasions in legislation where the word "possibility" is used in this way. There is a good reason that it is not used. It is because it is a word which leaves open an enormous number of possibilities — I know not using the word itself is not a very good way to define something but it is an indication of the extremity of the word and the difficulty of getting oneself outside the category of "no reasonable possibility". Clearly, the word "likelihood" is preferable in all the circumstances because it allows the court some reasonable discretion based on the facts of the marriage breakdown which is before it. The word "possibility" leaves very little discretion. It is possible that judges will take the view that only most extreme cases of breakdown and incompatibility are covered by this, and I do not think that is reasonable. For that reason I believe the Minister should think about this again and try to weigh up the advantages of using a less extreme word like "likelihood".
I know it is a strategy of the Government to put fairly onerous conditions on this proposal and that it is being done for what are probably valid political reasons; but in this instance I believe they are going beyond what is reasonable in terms of conditions and that it will make it extremely difficult to comply with this provision. If the word "likelihood" were used in the constitutional amendment, that does not preclude the word "possibility" being used in the legislation; but, unfortunately, we could not use the word "likelihood" in the legislation if the word "possibility" is used here.
I do not believe as a general principle that a Constitution should be so incredibly detailed, precise and unusually limiting as this provision is. Some sort of discretion should be allowed to the Legislature and to the courts but they have very little discretion under this provision. I can see long arguments being made about the existence of some possibility of reconciliation even in the most unlikely circumstances. A court might come to the conclusion that it is not satisfied that there is no such reasonable possibility because there is a double onus on the court — it has to be satisfied and it has to hold that there is no reasonable possibility. In those circumstances, and to prevent this provision being so extraordinarily restrictive as to make any possible future law almost unworkable, I think very serious consideration should be given to the use of the word "likelihood" here.
Deputy O'Malley and Deputy De Rossa said they felt that the words I spoke about would mean that no one would be able to avail of this facility. That is not true, but we are concerned that divorce will not be easily available. There is a difference between those two things.
Deputy O'Malley spoke about a valid political reason for these words. It annoys me when I hear the word "political" brought into issues regulating human relations. The word "political" should not be mentioned. What we are trying to do is to find the right wording in the best interests of society. Deputy O'Malley put his finger on the issue which concerns me and many other people who would like to see a restrictive form of divorce. He asked how this will work in practice. That is the question I, too, am asking. How will the courts interpret this? I do not want to give further discretion or latitude to the courts or to the Legislature than is in these words. I believe the words we are speaking about are the most positive we can find to have a form of restrictive divorce in Ireland.
In my contribution I was not imputing any ulterior motives to the Minister, to Deputy Doyle or to the Fianna Fáil speakers. My concern was that they were expressing anxiety that the wording would be restrictive. The effect of that would be that the people for whom we are supposed to be passing this amendment would be unable to get a divorce because of the restrictive nature of the words we are using.
I am not a legal person and I do not pretend to understand the legal niceties between "reasonable possibility" and "likelihood", "likely", "failure" and "breakdown". There are lawyers who could probably spend the rest of their lives debating these issues without coming to a conclusion. But, when this amendment is passed by the people and when the legislation is passed by this House as a follow up to that amendment, the courts will have to decide the interpretation of the words we use. I want to be clear in agreeing to this amendment that the words are not so restrictive that it would be virtually impossible to get a divorce.
It has been estimated that there are about 70,000 adults involved in marriage breakdown. Deputy Shatter indicated that the figure is higher, while others have argued that it is lower. Irrespective of how high or low the figure may be, we all know there are people involved in marriage breakdown who have created second families. It would be intolerable if we created a position where they could not approach a court to have their position legalised. My sole concern is that the people who need a divorce to regularise second relationships will be enabled to go to court and have that done. Perhaps if the Minister would tell the House how he foresees the wording used being interpreted in the courts that might clarify the position and we would see if our fears are well founded.
I did not intend to intervene again but some of the remarks that have been made require me to do so. First, I want to make it clear what I see as my duty in the Dáil today: it is to help inform public opinion exactly on what they will be voting. Much of the argument going on here today it seems would be much more appropriate and relevant to divorce legislation if such were ever to come before this House, but that is not what we are dealing with. We are dealing with a proposition asking the people to put an amendment into our Constitution. It is a different issue.
They may at the end of the day, sometime in the future, come to a specific conclusion, but at this stage we are concerned only with amending and putting certain words into the Constitution, and it is to try to help the voter to form a balanced and mature judgement on that issue that I intervened, not specifically in favour of more restrictive or less restrictive words, but simply to try to tease out exactly what the words before us are. Therefore, I am not advocating by way of amendment any change or form of words. I am confining myself simply to teasing out and examining the words that are here and their implication, so that when the people go to the polls they will, to the greatest possible degree of human certainty, know what they are proposing.
I come back to the point of trying to elucidate for one section of the community what exactly is in this amendment. It is that section of the community who I believe are in the majority of those who would be prepared to have divorce introduced in certain circumstances. I believe that section of the community would wish to know that the constitutional amendment would restrict to the greatest possible extent circumstances in which divorce would be allowed. I may be wrong, but I think that is the wish of a considerable section of those who are in favour of divorce. Therefore, it is important that we try to show to that section of the people whether the form of the words here which it is proposed to put into the Constitution achieve that the dissolution of marriage will be permitted only where that marriage has totally, finally and completely broken down and failed irretrievably. That is the main purpose of my examination of these words.
Does this amendment bring that about? Deputy O'Malley, Deputy Harney, Deputy De Rossa and others may argue that that is not what they want. I thought yesterday from the amendment supported by Deputy Harney and Deputy O'Malley in regard to irretrievable breakdown that they wanted very close wording, but if that is not what they want then "likelihood" is probably a better word than "possibility". If they want more flexibility, they are perfectly entitled to argue for that. If the Government case here is that these words will ensure that divorce and dissolution of marriage will be permitted only when the first marriage has totally, completely, finally and irretrievably broken down, these words will not achieve that.
The word "failed" we fairly generally agreed here yesterday has not the element of finality in it. Add to that the words "reasonable possibility", and between them, taking those two things together, there is a flexibility, a lack of finality or certainly in this form of amendment. I am concerned just to try to examine fully and completely whether this form of words here, these four criteria when they come into operation, will have the effect of ensuring that dissolutions are granted only in the sort of circumstances to which I think the majority of people on the divorce side would wish divorce to be restricted.
One important point about this is how it will work out in practice, and a number of Deputies asked that. That really is the key to a great deal of what we are saying. Of course we cannot know. We are trying to legislate for a future situation about which we cannot have any certainty. Judges have different point of view. They have their idiosyncracies, peculiarities, views and preferences and likewise dislikes, so it is very difficult for us to visualise how this new situation will work out in practice.
Another aspect of it is that this set of words will govern legislation. How will the Parliament of the day decide whether some form of legislation fits in with these words? The Supreme Court will probably have to decide whether the Parliament is right in deciding that the legislation is in conformity with the principles laid down in this amendment. It is all very doubtful and uncertain and none of us should be foolish enough to try to assert with any certainty how it is all going to work out in the end. All we can do is address ourselves to it and try to ensure by close examination and honest discussion here, which I think we are having, that we are as clear as we can be in our minds as to what exactly we are putting before the people. We owe it to the people.
The constitutional process is there. The people who framed the Constitution and the people who adopted it have made it very clear that before we make any change in the Constitution this process must be gone through. They wanted to ensure that this House would examine fully what the proposed change was, its implications and so on, before it would go before the people. That is the process we are engaged in. It is a necessary process and all aspects of it must be examined. If Deputy Woods, I and others on this side of the House feel that this amendment in the way it is worded at present does not provide that in future dissolution will be granted only where a marriage has failed beyond redemption, then we have a duty to say so and to ask the people to take that into consideration when voting.
The people in their wisdom may say: "We do not want to confine the situation to incidents where marriage has completely, irretrievably and finally broken down; we are prepared to be more lenient about it" but our duty here today in looking at these words is to try to make it absolutely clear to the people whether a form of words they are voting for does one thing or the other. In regard to the form of words here, the words "failure" and "reasonable possibility", as distinct from naked "possibility", I do not think we are creating a situation where there has to be an irremediable, total and final breakdown of marriage beyond any possibility of ever putting it together again.
It is fair to say that Deputy Harney——
I hope the Minister will excuse me. I am not walking out on his reply, but I have to attend a meeting.
Deputies Harney, O'Malley and De Rossa are worried by what they regard as the excessive rigidity of they conditions under which divorce would be granted under the proposals here. I set out the Government's view as to what those conditions should be in the text before us. We have a view from Deputy Woods and Deputy Haughey to the effect that they would like to see more restrictive conditions than those in the amendment. I know I am probably inferring a view there because Deputy Woods, in spite of a pressing invitation last night, did not say what his position was——
I referred the Minister to the section.
It is a pity that Deputy Haughey left, although I am not making a point about it. Since last evening we have a view of what his position might be since it appears he made the statement which he might have made on Second Stage if he had been here. It is fair to say that one can infer a position from what Deputy Woods has been saying over the last day or so and from what Deputy Haughey said last night. I find that I occupy the middle ground in that discussion. I can understand why Deputy Harney, Deputy O'Malley and Deputy De Rossa might wish to take a less rigorous view of the conditions than that set out here, although I do not happen to agree that that is what we should do in present circumstances.
I have more difficulty in understanding the position adopted by Deputy Woods and Deputy Haughey which seems to be, in spite of the very analytical stance of Deputy Haughey, not simply that they want to tease out the implications but that they would prefer to see a much more restrictive approach than that proposed in the Government amendment. It is important to make that point, not just for the purposes of debate, but for the information of the people watching this debate.
Deputy De Rossa asked for some examples of the kind of circumstances in which a court might be satisfied that there was no reasonable possibility of reconciliation. It is a fair question. I must now apologise to Deputy Harney because I think I misunderstood the drift of some of her remarks last night in this regard. She mentioned the situation of a couple separated from one another who had been married for some time and who might have three children. She said that they might take their holidays every year together with the children and have a reasonable level of communication. If that couple were seeking a divorce, having gone through the previous procedures, the court in any case has a constitutional obligation to satisfy itself as to whether there is a reasonable possibility of a reconciliation.
Deputy Harney would agree with me that, where the kinds of conditions she described exists, it would take some care on the part of the court and of the couple applying for a divorce to show that there was not a reasonable possibility of reconciliation. In those circumstances they would make the case that they felt that they should behave in that way, with a reasonable level of communication and some community of activity between them, for the sake of the children and because they did not want to be enemies for the rest of their lives. However, they would say that it was their clear wish that they did not want to go any further in a relationship than that and that it was not their intention to do so. In those circumstances a court could conclude that there was not a reasonable possibility of reconciliation.
If we take one of the other cases, such as that instanced last night by Deputy Shatter, of a relatively young woman who after some years of marriage was the victim of violence on the part of her husband and who had been through the whole procedure of barring orders and separations only to find that the husband had entered into another union with someone else and was opposing a divorce. In that case a court could probably quite easily be satisfied that there was no reasonable possibility of a reconciliation. I still take the view that the word "possibility" is a stronger word than "likelihood". I dispute Deputy O'Malley's contention that it is difficult to understand the meaning of the word "possibility" because, in commenting on its possible interpretations, Deputy O'Malley said that the use of this word gives rise to all sorts of possibilities. He did not say "likelihood"; he said "possibilities". I do not think there is any great difficulty in comprehending the meaning of the word "possibilities" which also has the connotation of something that can actually happen, that will work, that is possible. The court must look at the circumstances of the couple before it and satisfy itself on a view as to whether it is possible for these two people to effect a reconciliation. One could think of circumstances in which a reconciliation might come about, but if there is no possibility that those circumstances would come about then there is no reasonable possibility of reconciliation taking place. While being a strong word, nevertheless it can be comprehended and effect can be given to it by the court.
I wholeheartedly agree with one sentiment of which Deputy Haughey delivered himself just before he left, and I hope his colleagues in the House will take it to heart as their text for the day. He said — I think I am quoting his exact words —"We should not be foolish enough to assert with any degree of certainty how it would work out". If we take that view, we will have a much more reasonable debate than some of the passages we have had over the last few days.
The Minister said that he occupies the middle ground between more rigorous views on the one hand and weaker views on the other. We know that the words the Minister is suggesting can be seen in operation. There is no mystery about them, although we do not have them functioning in the Irish courts. The British Matrimonial Causes Act, 1973, section 6 (2), states that if at any stage of the proceedings for divorce it appears to the court that there is a reasonable possibility of a reconciliation between the parties the court may adjourn and do what it thinks fit.
We are talking about a Constitution which requires the court to be satisfied. It may help the Deputy if I interjected at this stage.
The Minister should permit me to speak.
The Chair would prefer if each Deputy was allowed to make his own contribution.
The term being used is not extraordinary or unusual. The Minister may want to connect them to other terms and I accept that they are connected with other terms such as that the court must be satisfied. However, I am sure the courts in Britain have to be satisfied. There is not a Constitution in Britain but we are proposing to put divorce into our Constitution and in doing that we will be one of the few countries in the world that will have constitutional divorce. We are putting a positive provision for divorce into the Constitution. It is not simply a question of saying "yes" or "no" to divorce here or of removing the ban from the Constitution. We are talking about amending the Constitution to give every citizen the constitutional right to divorce and the people need to understand that. It is in that context that the words are being fitted in. Those words are the same as those used by the courts in Britain and I do not think there is any great mystery about them. I do not think we should try to attribute to the words, "a reasonable possibility of reconciliation", something that does not apply to them. Those who want to see how they work should go to Britain where they are applied in the courts there. The word "likelihood" will give less protection to the existing family and, therefore, puts an onus on the spouse who is defending to show the probability and likelihood rather than the possibility of reconciliation. For that reason I do not think it is a better word.
Following what my colleague, Deputy Woods, has said, I have argued, in relation to the existence or non-existence of a constitutional provision here and elsewhere, that the 1937 Constitution should not have had a ban on divorce. That ban since then has caused a number of problems which are self-evident. I have been arguing for the referendum, hopefully from the basis of compassion. There is no compulsion on Catholics to divorce. I am a practising Catholic, and I do not make any apology for that, but I do not see myself in the role of a Catholic legislator for Catholic people. That is where I part company with a number of speakers on this proposal. I believe in giving my co-religionists whose marriage has broken down a second chance if they seek it. How dare I suggest that such people should not have a second chance.
I do not want divorce for myself; I am one of the lucky ones. But I am not going to deprive other people, after the referendum, of their constitutional entitlement. It is my argument that the provision should not have been in the Constitution in the first instance. At present we are discussing sanely and, hopefully, dispassionately the meaning of words. It is my view that most words have the meaning we give to them or the meaning we want from them. Deputy Haughey is correct in saying that we will have to be careful about this aspect of the debate. In order to give some idea about the confusion and various meanings of the words I should like to refer to the Concise Oxford Dictionary published in 1929 — the Oireachtas should bring itself around to getting an up-to-date edition of that dictionary; I say that by way of suggestion and not by way of criticism. The definition of the word “likelihood” in the Oxford Dictionary is, “being likely, probability in truth itself”. The meaning of the word “possibility” is, “state, fact of being possible”. The meaning of the word “probability” is, “quality of being probable, in all probability, most likely, there is no probability (likelihood) of his coming.
I am all in favour of debates of this nature, but on occasions they take a circular and repetitious form. One argument becomes the same as the last. We are sorry about that, but that is one of the weaknesses of democracy. To return to my original tune, as played last evening, I must say that in the final analysis we are engaging in a piece of semantics because if one addresses oneself to the meaning of the words in Chambers Dictionary, as I did yesterday, and today revert to the meaning in the Oxford Dictionary, one will see that they have apparent different meanings and different emphasis. We can give the meaning to words that we want.
The Minister, or a Member on his side of the House, raised the question of bringing a case before a judge arising from the legislation that will be based on the constitutional amendment. A lawyer for the plaintiff or the respondent will seek to give the meaning he or she wants to the benefit of his or her client.
On the other side, the case on behalf of the other party, that lawyer will seek to give the meaning he wants, to convince the judge in the interests of his client's case. That is what it is all about. Taking account of what is said during the course of this debate, the judicial function will be to interpret the meaning of the words in the legislation so constructed out of this amendment, assuming that it is passed by the people, I cannot stress often enough that I hope this referendum is passed by the people and I do so out of a genuine conviction of charity and compassion. How dare we, as legislators, set down moral guidelines for those who may be of different religions from us? We cannot do that. We are living in a Republic. I take the reference to the Republic from the credo of an Irish Republican. I believe in Irish republicanism as enunciated by Wolfe Tone; I believe in liberty, equality, and fraternity within the Irish nation; I believe that our citizens are entitled to religious and political freedom. The credo then goes on to deal with other matters in relation to the Six Counties.
We are certainly drifting into a Second Stage speech again, Deputy.
I apologise for that. I shall conclude by saying, again with respect, that on the matters before us, on the question of words or unwords, we are entering into an area of semantics. I am grateful to the Chair for his charity to me in that context.
I want to say a few brief words in reply to points made by Deputy Woods. I must first apologise for being a little bit disorderly a few minutes ago. Deputy Woods raised last evening the question of the meaning, in divorce proceedings in other jurisdictions, of the concept of a reasonable possibility. In fact, if the Deputy would think a little more about it, he is not talking about the meaning of words at all, nor can he draw any conclusion about the meaning of the words. What he is drawing to the attention of the House is not the meaning of the words but the structures, the procedures which are used in courts of other jurisdictions. As I pointed out last night and again today, although Deputy Woods does not take account of any of this, the particular piece of British legislation to which he has referred provides, as I said before, that rules of court may be made requiring the solicitor to certify to the court whether he has discussed the possibility of a reconciliation with his client. It also provides that if, at any stage in the proceedings it appears to the court that there is a reasonable possibility of reconciliation, the court may adjourn the proceedings to enable attempts to be made.
That is a provision which is totally different in nature from the one we are proposing here in this constitutional amendment. We are not saying in that constitutional amendment that we might require a solicitor to certify that he has talked about the possibility of a reconciliation, nor are we saying that the court may adjourn if it believes there is a possibility of reconciliation. We are not saying anything like that. What we are saying here is that, before it can grant a decree of divorce, the court must be satisfied that there is no reasonable possibility of a reconciliation. I want to put it on the record, for the benefit of the House and of the general public, that Deputy Woods is comparing with a constitutional provision something which is not in any way comparable. He is pretending that what he is comparing is a meaning of the words as used in different jurisdictions when, in fact, the point he is making has nothing whatever to do with the meaning of words.
If our Constitution did not include a provision banning divorce, it is entirely conceivable that we might be here today discussing, not a constitutional amendment permitting divorce, but legislation covering divorce. My firm view — of course, it is hypothetical — is that if that provision were not in the Constitution we should have been discussing divorce legislation quite some time ago. My far less hypothetical view is that we should have been having this debate on a constitutional amendment quite some time ago.
We are dealing with a situation where there is now a particular provision in the Constitution. We are dealing with a situation also where in order to achieve a certain result we are not simply deleting a provision from the Constitution but replacing it by something else. I do not know whether Deputy Woods plays table tennis.
I won the University championships twice, for the Minister's information.
Good, that explains a lot. Sitting here as I have been for the last few days, I have been admiring the kind of side spin he gets on the ball when he puts it out. Because we are not simply talking about deleting a provision from the Constitution, Deputy Woods is able to get this little bit of a spin on the ball and say we are providing for constitutional divorce — another nice litle spectre or monster of some kind. We are not providing for constitutional divorce. We are putting a provision into the Constitution that allows legislation to be passed to permit divorce and sets out the parameters within which that can be done.
The suggestion for the public and for the headlines of constitutional divorce is very much more emotive than what we are doing. I utterly reject that style of argument. That is headline politics of the worst type. Far from informing people, it is the kind of thing of which Deputy Woods accused me last night quite in the wrong, because that was not my intention — something which confuses and obscures the debate rather than enlightens. I would also make a plea to those who write the headlines that they should not fall for this type of side spin but perhaps they have other things to bat. I know it is not those who write the articles who write the headlines. Perhaps they all should get together for a game of table tennis with Deputy Woods at some stage and find out how the bounce is. It is totally out of keeping both with the quality and substance of this debate to raise this scare of constitutional divorce. I reject this further ploy with words.
There will be a provision in the Constitution for divorce.
It is another ploy with words which is used by people who want to give the impression that they are not taking a position when, if the truth were known, they are taking a position but do not want to say what it is.
To conclude on this point, the provision we are making, coming back to the condition about which we are talking, requires the court to be satisfied, in each case that comes before it, that there is no reasonable possibility of a reconciliation. We provide that because we believe we should guard against the possibility that people would divorce for reasons which have not to do with a fundamental failure of their marriage. It is, in my view, an essential part of any provision that we would make in relation to divorce. As I said earlier on, the determination as to whether there is a reasonable possibility of reconciliation is a stricter test than the suggestion that the court should be satisfied that there is no reasonable likelihood. That stricter test is far more in keeping with the wishes, as we know them so far, of people in this connection.
I would like to draw the Minister's attention to the fact that we are discussing a Bill which is called the Tenth Amendment of the Constitution Bill, 1986. The section we are discussing is to become part of the Constitution if supported by the people. I fail to see the Minister's point when he disagrees with me that we are making a positive provision in the Constitution which will provide for divorce. That is what we are doing. We are talking about legislation which can be altered in the House afterwards. We have to be honest with people. The Minister seems to think that this constitutional amendment is some sort of monster or monstrosity.
The problem is the nature of the amendment and how it will be used and applied in the future and the extent to which this House or anyone else who is concerned will be able to modify or affect the situation subsequently. That is why the formula of words is so important. The House can only subsequently make laws which come within the ambit of what is in the Constitution. Individuals within the State can insist that the House provide for them in accordance with the right which they would then have under the amendment which it is proposed to put in the Constitution. My only point in relation to this amendment is to suggest that the formula of words which is being used — the amendment is about this formula of words — is similar to the formula of words which is used in other jurisdictions.
The Minister wants to point to other aspects in this section which in his view-strengthen the formula of words. They are in the section and he is entitled to refer to them now while we are talking about the words specifically. Having said what I had to say about the word "possibility" in the first instance, the word "likelihood" would cause more problems. The only point that needs to be made clear is that there is nothing draconian about the wording which the Minister is using. It is a wording that is used as a general formula of words in divorce legislation. Any advice I can get on it is that as a formula of words it is not strong in protecting the rights of the first family. That is fair enough and the Minister may not agree with that. That is a matter which will be borne out in time if the amendment is passed. We can come back and look at it in time and see how it worked out. I cannot say any more than that.
The Minister cannot criticise me for raising these points in relation to such an important constitutional amendment. We have a duty in this House, and as Opposition spokesman I have a duty, to tease out and raise these points and try to have them discussed as fully as possible. I will have more to say on the section as a whole but as far as that word is concerned and as far as the suggestion of using the word "likelihood" is concerned I do not think "likelihood" will be an improvement. It will be a distinct disimprovement from the point of view of its lack of protection for the existing marriage.
I am sorry Deputy Andrews has left the House. In his opening remarks he spoke about the religious attitude of people in this matter as well as speaking for himself. I would like to put on the record of the House the quotation Canon O'Callaghan, a leading theologian, gave to the committee examining this question and I quote:
Those who insist on seeing the issue purely in terms of the State enforcing or not enforcing Catholic moral teaching are missing the point. The question to be decided as far as State law is concerned is the impact on society which a given law would be likely to have. Therefore, any suggestion or proposal should be debated strictly on its merits, not whether it is for or against the religion or the conviction of a particular denomination, even a majority.
Many people are missing the point here today. The Minister for Justice used the analogy of table tennis. I would go a bit further and use the larger game because I find Deputy Woods' service faulty to say the least. He takes out a red book now and then and quotes from English law, which is quite different from the situation we are discussing. He said the law we will enact and the law Canon O'Callaghan spoke about will have to come within the ambit of constitutional law which this House will now put before the people. We should try to keep our discussions within those confines.
The choice of wording, and I would submit the choice of words is very important, is determined to a large degree by our own views and perceptions. Our people should be entitled to have their marriages dissolved and have the right to remarry. Although there was some agreement yesterday on the context of failure between Deputy Haughey and Deputy Woods and me, I find this morning there is no room for manoeuvre. Some of the Fianna Fáil spokespersons would wish to see phrases such as "where there would be no possibility at all" or "where it would be totally impossible" introduced instead of "reasonable possibility" or "reasonable likelihood". They would wish to see it made absolutely impossible for people to have their marriages dissolved. That is where we differ fundamentally. If that is the case, it is dishonest to be merely playing around with words because if that is what they believe fundamentally they should be seeking to change the provision in a wholly different way.
I do not accept Deputy Woods' point that this will provide for constitutional divorce and I do not think many others would either. I take the point made by the Minister that those kind of remarks which inevitably lead to headlines and to all kinds of interpretations being placed on what we are trying to do in this debate are very unhelpful. Much of what went on last week, and may be going on again this week, is not helpful in the context of the debate. Deputy Haughey referred to the need to inform the public and I would agree with him, but I do not want to seek to spread misinformation, or to seek to frighten the public, or to seek to introduce a provision which would be so meaningless that there would be no point in going down the road of having a constitutional amendment at all. I would worry about future divorce legislation if it were to be introduced and were to be successful, as to whether or not it would be declared unconstitutional.
One of the first things we will have to do following the passage through the Oireachtas of divorce legislation is to refer it to the courts to ensure that it is constitutional and that it will not prove unnecessarily difficult or expensive for couples who may have to take a constitutional case themselves. The President may well do that, but it would be a worthy task which should be done at an early stage rather than have individual citizens having to go down that road alone.
There may well be situations where courts, having heard all the evidence submitted on behalf of both parties to the marriage, may not be in a position to say whether or not it is reasonably possible that the two could be reconciled. That is where the difficulty could arise. I am told that in legal terms the word "possibility" is rarely, if ever, used because of the difficulties or the contrived situations it can lead to. I can foresee a situation where people would dream up many fanciful arguments and argue that two people had been apart for ten to 15 years. Because they had not seen each other and because they had not met each other, one could not say there was no reasonable possibility of reconciliation because if they had met, or if they had been residing together, there might be a reasonable possibility of reconciliation. All kinds of crazy situations could emerge but I am not saying that they will. We are leaving far too much flexibility to the individual views of particular judges.
I saw fit last week to refer to the role women are playing throughout this legislation and the manner in which some people sought to frighten them. When people talk about courts they say "he" when talking about the judge. It is a male dominated area but I hope that will not continue in the future. I hope, in the context of these cases, that we will have much younger judges and also a large number of female judges. What will be required is that the person will have understanding and compassion and will be caring. Those qualities will be vital if couples who come before these courts are to have a fair hearing and if the matter is to be handled in a dignified way and not be offensive, too adversarial or too difficult on the parties involved.
I did not press my amendment last night but I feel so strongly about this wording that I will press this amendment. I see difficulties and the Minister is not being reasonable when he refuses to accept the change. I do not see the point in introducing a provision that is so stringent that perhaps nobody except the most extreme hardline cases would benefit. I do not agree with Deputy Haughey. I do not think that is the view of the vast majority of people who wish to see divorce legislation introduced. They feel that in reasonable situations where every effort has been made and where couples have tried very hard to reconcile their difficulties, they should allow them the right to have the marriage dissolved and to remarry. They do not want divorce just for people who have been beaten up or deserted. The ordinary public are much more reasonable in their interpretation of what they want to see than some of the views expressed here this morning on their behalf.
Cuireadh an cheist: "Go bhfanfaidh na focail a thairgtear a scriosadh ach amháin and focal "comhréiteach" mar chuid den Sceideal".
Question put: "That the words proposed to be deleted, other than the word "comhréiteach", stand part of the Schedule".
Faisnéiseadh go rabhthas tar éis diúltú don leasú.
Amendment declared lost.
Tairgim leasú Uimh. 4:
I gCuid I, leathanach 7, líne 3, "comhréiteach" a scriosadh agus "athmhuintearas" a chur ina ionad.
I move amendment No. 4:
In Part I, page 6, line 3, to delete "comhréiteach" and substitute "athmhuintearas".
Níl anseo ach iarracht a dhéanamh chun dhá fhocal a thabhairt le chéile. Ní chreidim go bhfuil an t-aistriú ceart ar an bhfocal "comhréiteach" ar a n-aistriú chuig an Béarla nó má thosnaíonn tú ar an mBéarla, ní dóigh liom go bhfuil an taistriú ceart ar an bhfocal "reconciliation" i mBéarla go dtí "comhréiteach" i nGaeilge. Glacaim leis gurab é an Ghaeilge and chéad teanga sa Stát agus dá mbeadh aon chás os comhair na cúirte gur chuig an leagan Gaeilge a rachadh siad chun a fháil amach cad é díreach a bhí i gceist ag an Dáil. Tá mise lánsásta leis an focal "reconciliation". Focal Béarla atá anseo agus tá brí an fhocail sin i gcúrsaí pósta leagtha amach go beacht anois agus tá sé á usáid go minic i gcúrsaí faoi chleamhnas, deacrachtaí atá acu agus mar sin de. Is é an focal "reconciliation" a bhíonn á úsáid i gcónaí sna cásanna sin.
Maidir leis an focal "comhréiteach" tá mise ag moladh rúin go scriosfar amach an focal "comhréiteach". Má théann tú chuig Dinneen chun brí an fhocail "comhréiteach" a fháil ní bheidh tú in ann í a aimsiú ar chor ar bith. Níl an focal "comhréiteach" ag Dinneen ar chor ar bith. Níor chuala sé ariamh é. Anois tá mise ag baint usáid as an leagan den bhliain 1927. Nuair a scríobh Dinneen an aige anseo ná "harmonisation", b'fhéidir "comhréiteach". Caithfimid glacadh leis gur focal nua-aimseartha é ó aimsear Dinneen a tháinig ón bhfocal "réiteach" agus anois tá daoine ag caint faoi "comhréiteach". Níl aon ghá an "comh" i dtús báire. Níl an focal "comhréiteach" ag Dinneen ar chor ar bith.
Má théann tú chuig an foclóir Béarla le Niall Ó Dónaill, 1977, tá an focal "comhréiteach" ansin ceart go leor, Bhí sé sin 50 bliain i ndiaidh an fhoclóra eile. Is é an bhrí atá aige leis an focal "comhréiteach" ná: "compromise, settlement, agreement, harmonisation". Ní féidir linne a rá gur ionann na focail sin agus an focal "reconciliation". Tá sé furasta compromise a dhéanamh gan aon reconciliation a bheith ann agus is furasta settlement de shaghas éigin a dhéanamh idir an bheirt a bheadh i gceist. Sin a deintear nuair atá siad ag scaradh ón a chéile: deineann siad compromise, settlement, agreement agus, an focal deireannach atá aige anseo ná "harmonisation", b'fhéidir go bhfuil sé sin níos cóngairí don bhfocal "reconciliation" ná na trí fhocail eile ach ní mar an gcéanna é. Is é sin an bhrí atá aige leis an bhfocal "comhréiteach". Má théann tú chuig an focal "réiteach"— tagann an focail ón bhfocal "réidh"— even, level, réidh"— deireann sé "clearing land from furze, clearing a passage of obstructions, smoothing, settling, unravelling, setting free, salving, relieving, settling with, preparing one, a plain, a level, a solution or explanation or analysis, a reading, a reconciliation, peace, concord, settlement". He gives many other examples.
Tagann siad sin ón focal "réiteach". Tá na focail "settlement", "agreement", iontu go léir. Deireann Ó Dónaill faoin bhfocal "réiteach": "clearance" of way", "smoothing of path", "clearance of land", "forest clearing", "plain and mountain", "disentanglement", "unravelling of thread", "solution", "adjustment", "agreement", "solution of difficulty", "answer to question", "to settle matters between people""réiteach a dhéanamh idir dhaoine". "Teacht chun réitigh le duine, to come to an agreement with somebody". Ó Dónaill defines "chuaigh an chúis ó réiteach orainn" as "we failed to decide the issue, to come to terms". "Ní théann rogha ón réiteach — peace is everything"; "bord réitigh, conciliation board". Sin é an ceann is feiliúnaí.
Ansin caithfidh tú dul chuig De Bhaldraithe chun a fháil amach cén bhrí, cad é an Ghaeilge atá ar an bhfocal "reconciliation". Tá sé simplí go leor: "réiteach, athmhuintearas". Níl ach an dá fhocal ann. Ansin, deireann sé "réiteach (idir dhá thuairim)"— an agreement between two opinions, a settlement between two opinions. Má thógann tú an focal "reconcile", deireann De Bhaldraithe "déanaim réiteach, síocháin athmhuintearas idir (bheirt)"; "to become reconciled": "mórtachas a dhéanamh le chéile arís"; "to reconcile somebody to something"—"duine a thabhairt chun sástachta i dtaobh ruda".
Ansin, tá againn: "to reconcile oneself to something"—"do thoil a chur le rud"; "déanaim réiteach idir (dhá thuairim)"; "tugaim (dhá thuairim) le chéile". Mar sin, tagann an focal "athmhuintearas" isteach, agus má théann tú ar ais go dtí Dinneen agus Ó Dónaill sílim go bhfuil an cheist réitithe. I Dinneen is é an bhrí ata le "athmhuintearas" ná — focal amháin —"reconciliation". Níl aon rud eile le rá aige faoin gceist. Má théann tú chuig Ó Dónaill, tá an scéal díreach mar an gcéanna —"athmhuintearas,""reconciliation".
Mar sin, deirim, siad na focail ba chóir bheith sa leagan Gaeilge anseo, in ionad "nach féidir le réasún bheith ag súil le comhréiteach idir na páirtithe sa phósadh," ná "nach féidir le réasún bheith ag súil le athmhuintearas idir na páirtithe sa phósadh". Caithfidh an bheirt sa phósadh dul os comhair cúirte agus caithfidh siad a thaispeáint nach féidir le réasún bheith ag súil le athmhuintearas, bheith ag súil le settlement, compromise, agreement. Tá súil ag chuile dhuine go mbeadh settlement sul a scaraidís, agreement faoi airgead, an teach, faoi na páistí, agus chuile rud mar sin. Tá go leor réiteach, go leor compromise, déanta idir an bheirt, ach níl aon athmhuintearas. Tá sé an-tábachtach go gcuirfear an focal ceart isteach anseo. Sílimse go mbeadh sé an-deacair do dhaoine fianaise a chur os comhair na cúirte chun a thaispeáint gur féidir le réasún bheith ag súil le comhréiteach a dhéanamh idir na páirtithe sa phósaidh. San dá fhoclóir seo deireann siad "réiteach idir dhá thuairim". An mbeidh na páirtithe in ann comhréiteach a dhéanamh faoí chuile rud?
Má tá sé i gceist againn an bhrí chéanna a bheith againn leis an leagan Gaeilge agus an leagan Béarla, "that there is no reasonable possibility of reconciliation between the parties to the marriage," caithfimid an focal san leasú, "athmhuintearas" a chur isteach. Má táimid chun aistriú beacht a dhéanamh ar an leagan Béarla atá againn sa Bhille, caithfimid an focal "athmhuintearas" a chur sa Bhille.
We should have in the Bill "there is no reasonable possibility of compromise", or "there is no reasonable possibility of settlement" between the two parties to the marriage, or "there is no reasonable possibility of agreement" between the parties. Of course there will be all sorts of reasons for settlements, the children, agreement about the house, the money and so on — all sorts of agreements and compromises will be made. Therefore, one should not want to prove in a court that there is no reasonable possibility of agreement or compromise. I agree with the English version of what must be proved is that there is no reasonable possibility of reconciliation between the two persons. Más é sin atá i gceist againn sa leagan Ghaeilge, ba chóir dúinn an focal "chomhréiteach" a scriosadh agus "athmhuintearas" a chur ina ionad.
I dtosach, táim buíoch den Teachta Mac Giolla faoin leasú seo a chur os ár gcomhair. Tá sé tábhachtach an leagan ceart Gaeilge a chur os comhair na ndaoine. I ndeireadh na dála, is é an leagan Gaeilge an príomh leagan agus má bhíonn aon difríocht idir an leagan Gaeilge agus an leagan Béarla is é an leagan Gaeilge an ceann is tábhachtaí. Ach ceapaim féin gur "comhréiteach" an focal ceart anseo agus rinne mé beagáinín staidéir ar an gceist. Míníonn "muintear"— agus mar adeir an Teachta Mac Giolla, is daoine atá i gceist anseo — daoine atá gaol acu le chéile, sa chéad áit; "mo mhuintir féin"— daoine a bhfuil gaol agam leo agus, an dara míniú, daoine atá cairdiúil lena chéile, daoine a bhfuil athmhuintearas eatarthu, is é sin, daoine atá cairdiúil lena a chéile. Ach is féidir athmhuintearas a bheith idir daoine i gcomhthéacs an Bhille seo gan comhreiteach nó teacht le chéile a bheith ann. Is é an rud atá i gceist anseo ná teacht le chéile arís, rud a chur ar bun arís. D'fhéadfadh beirt duine a bheith muinteartha lena chéile ach a bheith scartha óna chéile. Sin é an príomh rud atá i gceist anseo. Má bhíonn daoine scartha ón a chéile is féidir leo bheith cairdiúil lena chéile. Uaireanta bíonn daoine i bhfad níos cairdiúla lena chéile nuair a bhíonn siad scartha ón a chéile. Mar a deirtear as Béarla go minic, "My wife and I are divorced but, of course, we are perfectly good friends". Sin é an rud atá i gceist nuair a bhítear ag caint mar gheall ar mhuintearas nó athmhuintearas — cairdiúlacht — ach an rud atá á chloisteáil ón mBille agus ó théacs an Bhille ná "comhréiteach", an pósadh a chur le chéile arís. Tá mé cinnte san comhthéacs sin gur "comhréiteach" an focal ceart. Is féidir le daoine a bheith an-mhuinteartha lena chéile nó go mbeadh athmhuintearas eatarthu ach nach mbeadh siad toilteanach teacht le chéile agus an pósadh a chur ag obair arís. I gcás easaontas a bheith ann nuair a scarann lánúin phósta, is é sin, gan mhuintearas a bheith ann, is féidir ina dhiaidh sin athmhuintearas a bheith ann, is é sin, bheith cáirdiúil arís, gan aon chomhréiteach a bheith ann. Ní húsáidfidh mé mar shampla, mé féin agus fear eile — beirt duine — fear agus bean, atá i gceist anseo. Is féidir le beirt a bheith an-chairdiúil lena chéile agus a bheith scartha. Ceapaim gur comhréiteach atá ag teastáil ón téacs seo mar, d'ainneoin a deireann na foclóirí sin go léir, is léir gur "comhréiteach" atá i gceist, teacht le chéile arís, an pósadh a chur le chéile arís. Sin iad na deacrachtaí atá ann agus chun aon difríocht atá ann idir na daoine a réiteach agus go mbeadh comhréiteach de na deachrachtaí. Ceapaim nach bhfuil aon dabht ach gurb é "comhréiteach" an focal ceart anseo, go mór, mhór, mar a deirim, gur féidir, agus tarlaíonn sé go minic, le beirt duine a bheith muinteartha lena chéile ach nach mbeadh aon seans ann go dtiocfadh siad le chéile arís chun an pósadh a chur ar bun arís.
Caithfidh mé a rá go raibh mé oscailte maidir leis an leasú seo mar mothaím go bhfuil tábhacht áirithe ag baint le "muintearas" nó le "athmhuintearas" ach chuaigh mé i gcomhairle leis an Rannóg Aistriúcháin anseo agus le Oifig an Ard-Aighne chun an dá théarma a luacháil agus is é an chomhairle atá faighte agam ná gur chóir an focal "comhréiteach" a úsáid ar chúpla cúis. Ó thús báire, tá tábhacht ag baint leis an gceist seo sa chás go samhlaíonn sé go bhfuil difríocht idir an téacs Gaeilge agus an téacs Béarla agus is sa chás sin amháin go n-éiríonn an deacracht.
Bhí mé ag smaoineamh agus mé ag éisteacht leis an Teachta Mac Giolla go bhfuil gá eile ann, is é sin, go mbainfimís amach comhréiteach áirithe sa bhrí "compromise", "settlement", "agreement" nó "harmonisation" idir na foclóirí agus dá mbeadh comhréiteach againn idir Dinneen agus de Bhaldraithe agus Ó Dónaill go mbeadh sé i bhfad níos fusa ár gcuid oibre a dhéanamh. Ach nuair atá mé ag teacht chuig an pointe sin anois, ag breathnú ar eagrán 1979 de Dinneen, feicfidh tú ansin "comhréiteach" leis an bhrí "reconciliation". Más rud é gur féidir linn an bhrí sin a chur ar "comhréiteach" agus gur ionann an smaoineamh sa dá leagan ar bhrí amháin den fhocal, réitíonn sé sin an deacracht. Cé go raibh mé píosa oscailte ar an leasú seo i dtosach, is ar an gcúis sin a deirim gurb é "comhréiteach" an focal is cuí agus an focal is cóir a úsáid sa chás seo.
Is féidir argóint a bheith againn faoin cheist seo ar feadh an lae agus táim cinnte go mbeidh an argóint seo ag na breithimh má thagann an cheist seo os comhair na cúirte. Tá súil agam go dtiocfaimid chuig an breithiúnas ceart faoi na focail seo mar is daoine atá i dtrioblóid a bhéas ag dul os comhair na cúirte.
Ní aontaím ar chor ar bith leis an Teachta Haughey nuair a deireann sé gur ionann "athmhuintearas" agus "muintearas" agus gur ionann "muintearas" agus "cairdiúlacht." Ní hionann. Níl ach an t-aistriú amháin ag an dá fhoclóir don fhocal "athmhuintearas". Tá an t-aistriú amháin ag an bheirt acu agus is é sin "reconciliation" ach maidir leis an focal "muintearas" tá difríocht mhór idir é sin agus "cairdiúlacht". Deireann Niall Ó Dónaill maidir le "muintearas": "Membership of household or community, association, fellowship, familiarity". Nuair a bhíonn daoine muinteartha le chéile, deireann an foclóir seo, "related to" agus is dócha gur eol dúinn go léir daoine faoin dtuaith a deireann "We are friendly with them", agus is é an bhrí atá leis sin ná, "We are related to them""friendly with them", "related to them". Tagann sé ón fhocal "muinteartha"—"Táimid muinteartha le chéile"
Ach tá i bhfad níos mó le "muintearas" ná mar atá le daoine a bheith cairdiúil nó in a gcairde. Usáideann Dinneen an focal "cohabitation" faoi "muintearas". Ní fhéadfadh le héinne a rá gur ionann "cairde" agus "cohabitation". Muintearas: alliance, relationship, cohabitation; úsáideann sé an focal "cohabitation" i gcomhair "muintearas". Athmhuintearas, dá bhrí sin, teacht le chéile, "reconciliation""reconcile". Tá siad beirt, caoga bliain óna chéile, ar aon aigne faoi sin, faoi athmhuintearas mar an fhocal ar "reconciliation". Muna bhfuil sibh sásta leis an focal "reconciliation" tá sé sin ceart go leor ach caithfidh sibh ansin, má tá sibh ag rá gurb é an focal "comhréiteach" an focal ceart, dul chuig an leagan Béarla agus aistriú a dhéanamh air sin chun iad a thabhairt le chéile. "Let there be no reasonable possibility of settlement, compromise, harmonisation".
Is dócha nach n-aontódh an tAire leis sin ar chor ar bith. Tá sé cinnte gurb é an focal "reconciliation" an focal ceart agus nach mbeadh compromise ceart, nó settlement ceart, nó agreement nó harmonisation — ní bheadh sé sásta le haon cheann díbh. Ní féidir liom a fháil amach ansin cén sórt argóna nó cén sórt réasúin a bhí ag na haistreoirí adúirt leis gurb é an focal "comhréiteach" an focal ceart sa cheist seo nuair atáimid ag caint faoi bheirt nach n-aontaíonn lena chéile, atá, b'fhéidir, scartha óna chéile nó nach féidir leo labhairt nó caint lena chéile.
Táimid ag caint faoin muintearas a thabhairt arais eatarthu. Nílimid ag caint faoi "settlement"—"I get the breakfast, you get the dinner — you sit down there, I sleep up here"— settlement, agreement, compromise. Is féidir linn settlement, agreement, compromise a fháil gan aon reconciliation agus tá sin á dhéanamh cheana féin. Tá a fhios againn go léir faoi theaghlaigh ina bhfuil an fear agus an bhean agus iad gan a bheith fiú ag labhairt le chéile agus is dócha go bhfuil agreement, compromise nó settlement leagtha amach acu sin. Ní itheann siad le chéile agus ní chodlaíonn siad le chéile agus tá sé sinn leagtha síos, b'fhéidir, i settlement, agreement, compromise. Ach níil an reconciliation ann, níl an athmhuintearas ann, níl siad ag teacht le chéile ar chor ar bith. Níl an "cohabitation" ann.
Sílim féin go bhfuil níos mó ná "semantics" sa cheist seo agus is dócha go dtuigeann an tAire agus an Teachta Haughey go bhfuil ceist tábhachtach á plé anseo. Agus sílim féin nach bhfuil aon argóint gur féidir a chur faoin bhfocal "comhréiteach" chun a thaispéaint do bhreitheamh go bhfuil an bhrí céanna le "comhréiteach" agus atá le "reconciliation". Ní dóigh liom gur féidir le héinne é sin a dhéanamh — a thaispéaint go bhfuil an bhrí céanna ag comhréiteach agus atá ag "reconciliation". Tá go maith, déanfaidh sé an gnó — déanfaidh aon rud gnó sa Ghaeilge na laetheanta seo; níl ann ach an leagan Gaeilge agus níl mórán suime ag éinne sa mhéid sin. Is é an rud is tábhachtaí ná "there be no reasonable possibility of reconciliation" agus sin an rud a bheidh na daoine ag caint faoi nuair atá siad ag vótáil. Beidh an argóint agus an pholaitíocht agus chuile rud ar theilifís, raidió agus os comhair na séipéal, an chaint go léir faoi go gcaithfear a thaispéaint "that there was no reasonable possibility of reconciliation". Agus ní bheidh éinne ag caint, fiú sna Gaeltachtaí, faoin leagan Gaeilge atá air sin. Dá mbeidís, b'fhéidir go mbeadh ceist eile faoin bhfocal "comhréiteach" agus "réiteach" agus cad é an bhrí atá ag daoine thíos ansin sna Gaeltachtaí leis na focail sin.
Is dócha go bhfaighidh an Teachta Haughey é sin amach nuair a théann sé síos ag an deireadh seachtaine. Cén bhrí atá acu siúd, síos i nDaingean Uí Chúise, nó amuigh in Arainn nó aon áit eile le "réiteach" nó "comhréiteach" nó le "muintearas" nó "athmhuintearas". Agus tá an-chiall le "muintearas" agus le "athmhuintearas" sa Ghaeilge. Tá sé deacair aistriúchán díreach a dhéanamh ar "muintearas" agus "athmhuintearas" mar baineann sé le clann agus le, mar adéirtear i mBéarla, "the expanded no extended family". Sin atá an muintearas ag caint faoi. Tá daoine muinteartha le chéile — far-out cousins de shaghas éigín — ach athmhuintearas, sin teacht le chéile, "reconciliation". An t-aon aistriúchán atá air ná "reconciliation" agus iarraim ar an Aire féachaint ar an bhfocal arís mar táim deimhin de nach bhfuil an bhrí céanna leis an dá fhocal ansin, "comhréiteach" agus "reconciliation".
Ba mhaith liom a rá arís go bhfuil mé sásta leis an bhfocal "comhréiteach" mar ceapaim, ainneoin a deireann an Teachta Mac Giolla, go bhfuil na focail "muintir", "muintearas", "athmhuintearas" ag baint le daoine don treibh céanna agus an dara míniú ná cairdiúlacht, agus ní dóigh liom go bhfuil sé oiriúnach don chás seo. Ach níl aon deacracht agam leis an bhfocal "comhréiteach". Tá deacracht agam leis an bhfocal eile atá san alt seo agus is é seo an focal "réasún" nó na focail "le réasún" agus ceapaim go mbeadh an rud i bhfad níos láidre dá ndéarfaí "nach féidir bheith ag súil le comhréiteach idir na páirtithe". Bheadh sé sin deimhneach agus láidir agus sin an trioblóid atá agamsa leis an leagan Béarla agus an leagan Gaeilge. Chuir mé an argóint sin os comhair na Dála nuair a bhíomar ag caint mar gheall ar an leasú is déanaí. Ach dá mbeadh an tAire chun aon athrú a dhéanamh ar na focail in alt a trí is é sin an t-athrú ba mhaith liomsa a fheiceáil ná go dtógfaimís na focail "le reasún" amach as an alt agus ceapaim ansan go mbeadh sé i bhfad níos soiléire agus níos deimhní agus níos láidre. Ach, maidir leis an dá fhocal "athmhuintearas" agus "comhréiteach" ceapaim go bhfuil an ceart ag an Aire gurb é "comhréiteach" atá i gceist anseo. Dúirt an Teachta Mac Giolla go bhfuil ciall speisialta ag "muintearas". Tá sin fíor ach ciall eile atá ann agus ceapaim go bhfuil sé i bhfad níos mó dírithe ar an gcairdiúlacht ná mar atá sé dírithe ar theacht le chéile agus rud a chur ag obair arís, agus ceapaim san chomhthéacs sin gur "comhréiteach" an focal ceart.
Cuireadh an cheist: "Go bhfanfaidh an focal a thairgtear a scriosadh".
Question put: "That the word proposed to be deleted stand."
Faisnéiseadh go rabhthas tar éis glacadh leis an gceist.
Question declared carried.
Tairgeadh an cheist: "Go bhfanfaidh an Sceideal mar Sceideal don Bhille."
Question proposed: "That the Schedule be the Schedule to the Bill."
The purpose of the section is to allow for the dissolution of marriage and re-marriage. It will, of course, place a positive provision in the Constitution to allow for divorce. It will have a profound effect on the position of the family in Irish society. It is a question that must and can only be answered by the people. We in Fianna Fáil want to see the issues fully assessed so that the people can make an informed judgment on this proposal.
As we have stated very clearly, we will not campaign on a party political basis on this matter. We are concerned that the family, the fundamental unit of our society, should be fully protected. While there is in this House general consensus that the people should be consulted about the proposed introduction of divorce by way of amendment to the Constitution, neither individual Deputies nor the political parties are relieved of their duty to debate the Bill and refer to both the merits and the demerits of the proposed alteration in the Constitution. Some media critics and their editors felt that I placed too much emphasis on the position of the spouse and children of the first family in my contribution. But I would point out that the amendment clearly meets all the needs of the second family. I have listened repeatedly to arguments made by people who seek to have a divorce jurisdiction. One of the principal reasons that comes through again and again is that they want to have a legal recognition of their new situation. I spelt that out on Second Stage. I put down the pros and cons, the arguments made by those in favour of divorce and the arguments made by those who are against it. As I see it, this amendment which is proposed clearly meets all the needs of the second family and it gives not only legal recognition and a legal status to a re-marriage but will also give a constitutional status in addition to a legal status.
Having put the points of view of those who want to have divorce and those who are against divorce, one finds that the questions that arise in relation to this amendment are questions relating particularly to the first family and its position if this amendment is made to the Constitution. They become critical questions at that stage because the question then is what degree of protection is left to the first family, what is their position constitutionally once we move into the new situation. A very forthright and clear debate on this matter is essential if the people are to understand fully the issues and the implications of the proposal.
The basic controversy here on this issue stems from the commitment of the State and its institutions to protect the family and to guard with special care the institution of marriage and protect it against attack, and the desire to make provision for the real human needs of that minority of people whose marriages have broken down and who wish to re-marry. That is the question that is before us. We must find a balance between these two things. We hear the Taoiseach saying every so often that in this amendment he has got the balance right. I presume that is the balance he is talking about, the balance between these two elements.
Divorce and the extent of its availability has indeed been a contentious issue in virtually every society where measures such as this have to be dealt with. It is not unusual, therefore, that it should be contentious here in our society. The reason is that there is an inherent conflict between guaranteeing the protection and stability of the family as the natural, primary and fundamental unit group of society, and making legal provision for the dissolution of that marriage with the right to re-marry when one or both of the partners feel it must be brought to an end. So there is a conflict in this situation, no matter how one approaches this question. Ranged on one side of this conflict are those who say that in principle divorce must never under any circumstances be introduced and, on the other side, those who say that divorce is a civil right which must be available under any circumstances. Those different arguments have been put here in the House. From the point of view of the State, I believe both these approaches are inadequate.
As I said on Second Stage, the first question people have to decide is whether the nature and extent of the problem of marital breakdown in our society is of a sufficient degree and magnitude to justify the introduction of divorce with its inevitable ill effects on the status and stability of the institution of marriage. There are Deputies who argued that it will have no effect on the stability and status of marriage in our society, but I cannot understand that argument and it has not been proved in contributions made so far. This is a reality and should be taken into account when weighing the balance of this question.
As I also said on Second Stage, it is a question of judgment for each individual voter as to whether the benefits accruing from the alleviation and remedying of the human needs of those who wish to remarry are or are not outweighed by the destabilising effects which flow from the change in the status of marriage from being a permanent and lifelong bond to one which can be terminated if one of the parties is determined to set it aside. Some people have said that this will not be the case, that it will not affect the permanence of marriage, and that is a subject which will be debated more fully.
In short, it is a question of the people judging where the interests of the common good of society lie. I was glad to notice the Taoiseach agreed with this approach when he said the voters in this referendum should direct their primary attention to the question: where lies the social or common good in this matter? Although he accepts that with divorce one must allow for the possibility that some marriages will fail which otherwise would not have done so, his assessment is that the number of such marriages will be few and far between. He dismisses them as being of little account in weighing the balance as to where the interests of the common good of society lie. That is a point of judgment from the point of view of politicians and ultimately from the point of view of the people who will have to give their considered view.
It is at this point in his assessment that I part company with the Taoiseach, because I believe it is an assessment which is wrong and misleading. It is simplistic and fails to answer many questions which the reality of divorce will pose for society if it is introduced. It is not the kind of informed debate which will help the people to appreciate all the issues involved. For example, the Taoiseach and others have approached the issue as if society attitudes towards and understanding of the institution of marriage will not change if divorce is introduced. The fact is our human perceptions and response to the institution of marriage have been conditioned by its permanence and indissolubility in civil law. I am talking about its indissolubility in civil law; I have not at any stage mentioned the Churches or their views, although they were taken into consideration by the Oireachtas Joint Committee. I believe this is a matter of deciding on a major social issue and how it should be approached.
With the introduction of divorce it is inevitable that the status and social function in society of the institution of marriage as an indissoluble, permanent and lifelong contract or bond will change considerably and with it the attitudes and commitment of a significant proportion of our society. Notwithstanding that, I believe it is for the Dáil to outline the social issues and the elements involved and it is for the people to decide on the moral issue involved in this referendum.
I am in favour of the issue being put before the people so that they can give their decision. If a sufficient body of the population vote in favour of the referendum, then the legislation should be introduced; but it is still very important that the issues be teased out and discussed fully here because then we can give the people the facts. Those who will campaign for or against divorce will have a lengthy period to put their views when this debate is concluded. We debated this subject for three days last week but some Deputies said they did no get an opportunity to contribute because there was not enough time since the Government had already set a date for the referendum and that put a constraint on the debate.
Having listened to the Minister's Second Stage reply, I am not reassured on a number of points. We debated last night and again to some extent this morning the use of the word "failed" and the way it is being used in this amendment. The Minister considers that not only is it fairly restrictive, but it is supported and strengthened by a number of other elements in the section. My understanding of the wording is that it still sets a low threshold for deciding on a divorce. I believe it is a subjective term and will make it difficult for the courts to reach a decision. I listened carefully to what the Minister had to say about this, but I still feel that "failed" is a subjective word.
The Minister does not like me to talk about unilateral divorce. He agrees that there can be a unilateral divorce but, as Deputy Shatter said, that is the case when any marriage breaks down. Last night Deputy Shatter mentioned the hardest cases he knew, but what are the simplest cases where people can just walk away from a marriage?
Is the Deputy talking about desertion?
That is the fear people have about words——
Is the Deputy talking about desertion?
I am talking about a marriage failing.
Is the Deputy talking about desertion?
I am not specifically speaking of desertion.
What is the Deputy speaking on?
I am speaking on Committee Stage and the Minister will have an opportunity shortly to speak.
The Deputy could help us to understand the position.
I am trying to understand the possible implications of the words and how they will be interpreted subsequently. I listened to what the Minister said in relation to this section and its impact and I find that it will allow for divorce once a couple have been married for five years. That is the bottom line as it stands in the amendment before us now. I recognise that the Minister said he intends or some of his successors intend to bring in legislation which will consolidate that and will provide for periods of separation or whatever else, but it is quite clear that the words which are to be included in the Constitution will provide that after five years of failure, if there is no other provision, if no condition is added to that, or if the condition which is added is reduced in future or whatever, the basic bottom line is five years in which a marriage——
No, five years' failure.
Yes, in which a marriage is deemed to have failed for five years. We spent a great deal of time talking about what it will constitute. We have agreed that "failure" is a word which is not particularly final or definitive. The provisions in the section are particularly inadequate in providing financial support and security for a divorced spouse and the children of the first marriage. There is no provision in the Constitution for any further allocations or arrangements for the first family as a right, so nothing is being put specifically into the Constitution as a right to cater for the first family after the divorce. The Minister and others here say, and will say again: "Well, what do you expect in divorce?" Under our Constitution as it stands the family have clear and unequivocal constitutional support. Once this amendment is approved and goes into the Constitution, then what clearcut, positive constitutional provision will be there for the first family as a family?
Perhaps the Deputy will indicate, other than statutory supports which exist at the moment, what constitutional provisions exist for a family when a marriage has broken down currently.
This is typical of the kind of response made when this question is raised. The problem is a constitutional question, not one of the statutory provisions——
That was answered last Friday afternoon and the Deputy might as well have been sitting on the moon for all the attention he paid to it.
The Minister should constrain himself and let someone else speak here in this House and please stop speaking down to me or anybody else here. We all have a right to speak. I appreciate that he is the Minister and belongs to the Fine Gael Party. I appreciate that there is something special about him in all this, but we have a right to speak just the same as anybody else here. I will not tolerate this interference and I call on the Chair——
(Interruptions.)
Minister, please.
——to put the Minister back into his little box and let us speak reasonably as we wish to do. The Minister will have his opportunity to reply. He seems to think there is something formal, definite and secure in this amendment which will provide financial support and security for the divorced spouse and the family who may be residing with that spouse. I do not think it is here. This is a crucial element in this provision and there will be no opportunity subsequently, as far as I can see, for the family in that instance to appeal to the Constitution for their right as a family. Certainly they will have personal rights under the Constitution. They were a family previously and lawyers can argue that they were founded as a family once and that there was a foundation there sometime. Why not be clear and explicit? Then such a family could rely on the Constitution for protection subsequently as a family. We must address ourselves to that question in the course of this Committee Stage.
A point I raised to which I have got no answer so far is that this amendment gives no constitutional protection whatever to a spouse who is considered not to be a dependent spouse on seeking a divorce. What is a dependent spouse and what, therefore, is a non-dependent spouse? I would like the Minister to explain. For instance, if the husband is a farmer and the wife a teacher, is the wife then regarded as a non-dependent spouse and is she therefore to have no constitutional protection under this measure? A non-dependent spouse is omitted. It is the other side of the coin. The spouse mentioned is the dependent spouse only.
I would like the Minister when speaking on this section to explain what the dependent spouse is and how he would define a dependent spouse now and in his calculations in relation to the future. Is a wife considered to be a non-dependent spouse because she is capable of working although she may not even be working at the time? I will be interested to hear the Minister on that aspect. Because the amendment which the Minister is proposing is so silent in relation to a non-dependent spouse I am very concerned about the situation in relation to that non-dependent spouse.
If we are to take the non-dependent spouses as wives who are working, the figure is approximately 100,000 working women who, presumably, according to the definition provided by the Minister here of a non-dependent spouse, would be excluded by this section. The dependent spouse is considered, of course, but it seems as if 100,000 working women are excluded from this section. Certainly they are not explicitly and clearly included and they are left out by virtue of the fact that only dependent spouses are specified. There are two questions there. First, what is a dependent spouse? What sort of spouse would be considered to be dependent? How has the Minister defined that in arriving at his decision to exclude the non-dependent spouse?
Second, how would the non-dependent spouse be defined subsequently? Could the fact that the spouse was capable of working be taken as a criterion in judging whether a spouse should be regarded as dependent or non-dependent? That is a very important aspect of the proposed amendment, but there has been deafening silence in the media regarding non-dependent spouses and how the amendment affects them.
I also said that the proposed amendment provided little protection for assets or sources of income like a shop or farm. The Minister said that the amendment says that proper provision must be made and that such provision should take into consideration the fact that a wife had been working on the farm and had contributed in that way. If that is the case, should the Minister not have included the word "compensation", which is a different thing in law? Decisions would have to be very clear cut in regard to compensation. I know that the Minister may have in mind bringing in legislation which would ensure an even-handed approach and balanced arrangements in relation to property. Will the Minister be constrained by the words in the amendment because the legislation will have to have recourse to the constitutional position at that stage? That will have to be dealt with fully.
I also raised the question of inheritance rights of the spouse and of children in relation to the moral duty of parents and whether that moral duty under section 117 of the Succession Act would continue. I should like the Minister to state the position clearly in that regard. It seems to be agreed that it would be diminished and diluted and that it would be necessary to pursue it in the courts, but that is an obvious feature. If there are children of the second marriage there will be a dilution——
Section 117, to which I referred last Friday, has to be pursued in the courts.
I understand that. I referred to social welfare benefits and it seems that they will apply to the second wife. The Minister said that a suitable scheme could deal with that situation but he accepted that the benefits would transfer to the new wife. If the husband died the second wife would become the widow and, therefore, would be eligible for the widow's pension. The Minister will probably say that social assistance schemes are in existence to deal with it or that other schemes could be modified to deal with the problem. Nevertheless, the State will have to assist the divorced wife and children on a means-tested social assistance basis. From statements made by various Ministers that seems to be the case. However, it has implications from the point of view of the first family. There is no problem in regard to the second family in that respect because they will be entitled to the benefits involved. At present the benefits stay with the wife because, even if there is a judicial separation or some other agreement, the widow's pension and so on will go to the first wife. In the amendment before us it is clear that that will not happen and if the Minister thinks otherwise he should have said that provision will be made for the first wife. I accept that the Minister intends to make provision in this regard, but such provision will become a means-tested social assistance provision unless the Minister intends to have benefits paid to two widows, deserted wives and so on. Obviously the costs would be very high and I am sure the Minister has done some calculations in that area. The Minister is nodding his head so I presume it would be social assistance schemes which the State would normally provide in those circumstances.
The final point which I made in relation to this amendment on Second Stage was that the rights and protection enshrined in the Constitution, designed to protect the family based on marriage, would be transferred to the second marriage and that the position of divorced spouse and children of the first marriage would be at least questionable. The Minister seemed to think that this would not be the case and we should not be worrying about them——
That is a caricature of what I said.
The Minister can enlighten us in that regard at the appropriate time.
I outlined the position last Friday.
If the Minister believes that there should be protection for the first family, why not include that protection in the amendment so that it is clear, specific and can be seen clearly? That does not take into account financial considerations or the benefits lost because the position of the first family will be questioned by legal people subsequently unless the position is very clear. If the Minister intends that the first family should still be regarded as a family based and founded on marriage, he ought to say so. He should not be ambiguous in this regard. I will be very interested to hear what the Minister has to say. I raised major questions on Second Stage about the amendment and I have a great deal more to say about them.
Tugadh tuairisc an a ndearnadh: an Choiste do shuí arís.
Progress reported: Committee to sit again.
Sitting suspended at 1.30 p.m. and resumed at 2.30 p.m.