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Dáil Éireann debate -
Wednesday, 10 Feb 1988

Vol. 377 No. 7

Private Members' Business. - Judicial Separation and Family Law Reform Bill, 1987: Second Stage (Resumed).

Question again proposed: "That the Bill be now read a Second Time."

Acting Chairman

Deputy Flanagan is in possession and has 15 minutes of his time left.

I will be brief in order to facilitate all Members of the House on this issue. It is regrettable that the party that actually introduced the Bill has just had two speakers to date; I am the third. It is most unlikely that each and every person from our party who wants to contribute will have the opportunity to do so.

Yesterday I covered many sections of this Bill which I regarded as being most welcome, having based my comments on a general feeling that if we are to tackle the problem of marital breakdown, we will have to take a very serious look at the question of increasing the age at which people can enter a contract of marriage.

Just before we adjourned yesterday I was dealing with the serious difficulties that a family law practitioner has here. The general public and many members of this Legislature are not aware of the serious difficulties that arise in almost every courthouse in the country. The atmosphere and the general surroundings militate against any form of conciliatory approach in family law matters. In many instances applicants in family law courts must stand in a dancehall-like fashion, men on one side and women on the other. It is most degrading that people involved in this most traumatic proceeding have to put up with lack of proper seating facilities, never mind consultation rooms which I would regard as being of ultimate importance. This is no way to deal with the problem of marriage breakdown. Now that we are proceeding to enact this Bill I suggest that we look at the manner in which we run our family law courts.

Section 22 of the Bill is to be welcomed. It provides that the State should institute special day hearings for family law matters in buildings or at a time separate from other court proceedings. This will do more than just facilitate the applicants and the officers of the court. It will also facilitate the judges. It is most unfair of us to expect a judge to engage in what could be a very lengthy criminal trial or a very lenghty civil matter and immediately afterwards go into camera to hear a family law matter. It is very important to have a different venue or a different time for family law proceedings.

Sections 22 and 33 deal with the informalities that are necessary if we are to adopt a more reasoned approach to family law hearings. It is at present intimidating for many applicants or respondents to be faced with the concept of counsel with wigs and gowns, judges with wigs and gowns, the formal leather seating of the courts, the witness stand, the court crier and so on. For family law matters it would be better to see less of the formal procedure. This has worked very successfully in New Zealand and in Australia. I certainly do not see it as demeaning in any way or reducing the status of our court officers. It would go some way towards adopting a more reasoned and conciliatory approach in the entire matter.

Deputy Harney mentioned that lawyers are shunning family law and, as a legal practitioner, I would agree with that. For some reason, family law has become the poor relation. Deputy Ahern said that the feeling was that there was no money in family law. I would not like to think that is the reason. I think it is because there is no sufficient expertise within the legal profession to deal with the problems. It is not surprising when, even in 1988, there is not in our law schools a comprehensive course in family law available to the students, nor is reaching a sufficient standard in family law required to pass a law examination. Without this training and without the expertise family law will not be treated as it deserves by the legal practitioners. It is important for practitioners of many years standing, as well as for the Judiciary, that refresher courses be introduced and training facilities be set up. I do not think our Judiciary would disregard this suggestion or would regard themselves or their positions as being above it. I think many of them would welcome it and that would be a very important step. This is a matter that was strongly recommended by the Oireachtas Joint Committee which reported some years ago.

As I said last night, I welcome the Bill but it will not function properly without a comprehensive improvement with regard to the legal aid facilities available in this country. Undoubtedly the most fundamental defect in the Irish legal system is the absence of a comprehensive legal aid scheme. We can have all the good legislation in the world but it will not be of any benefit unless there is access by the people to the courts and without improvement in our legal aid system this access will not be there.

It is 11 years since the Pringle Report was published. That report called for immediate consideration to be given to a comprehensive civil legal aid system. What we have seen since 1977 is the concept of the law centre which was set up to provide legal aid in centres of urban population. I would not like to be overcritical of the law centres but there is a limit to the amount of work that these people can do. It is unfortunate if somebody in a family law case has to have recourse to a law centre because it is lawyer by lottery in so far as they pick a ticket and are introduced and assigned to a particular lawyer without any choice whatever. It is regrettable with a matter as traumatic as a family law case that one does not see one's lawyer until one is assigned one, without any element of choice. Undoubtedly the lack of finance for the running of a particular case means, in many instances, a lot of hardship. It is a denial of access to the courts and perhaps leads many people to seek legal advice from untrained people, such as social workers or, indeed, politicians, as is often the case.

Sections 13 and 19 of the Bill deal in some respects with the question of maintenance. I think it was my colleague, Deputy Monica Barnes, who called for a fairer system of maintenance and I think everybody on all sides of the House would be in agreement with a fairer system of maintenance in family law matters. Society has ordained that the basic wage that is available to a breadwinner is to provide him or her with sufficient means to look after their families. Never was it envisaged and never will it be envisaged that sufficient wages will be given to somebody to look after two families and that is the difficulty we will always have with regard to maintenance — no matter what the dispute, one wage will not run two families or two houses. However, section 13 attempts to regularise matters but the grim reality is that one cannot divide what is not there.

I agree with the setting up of family law courts and with the removal of the concept of fault and blame. This brings me back to section 2 which I see as being fundamental. I urge the Government not to consider amendments along the lines suggested by the Law Reform Commission. We have before us the Oireachtas Joint Committee report which considered 700 written submissions and which heard many submissions from all interested parties. I urge that section 2 should not be amended on Committee Stage.

In the light of the agreement to curtail the individual contributions to 15 minutes it is my intention to do so. I had intended pacing myself for 30 minutes but I am sure, on the basis of the agreement, there was a general sigh of relief that I will not have to expound for any longer than 15 minutes. This is a subject which is very dear to my heart and has been of serious concern to me in my privileged and long membership of this House. The Bill is part of a development in Irish politics which I very much welcome, that is consensus politics. Because one is in Opposition, therefore one apparently, up to recent times, was completely shut out in terms of presenting legislation or having a point of view accepted by the Government of the day. I welcome this development. It is one which I have been seeking during my public life. It is nice to see consensus coming into democracy in this country, albeit belatedly, but welcome nevertheless.

It is in that spirit of consensus that we welcome Deputy Shatter's Bill, and I welcome it unreservedly. It was a genuine effort by a Dáil Deputy on his own behalf, regardless of which political party he happens to be a member, to achieve perfection in an area where perfection is required. It is on those grounds that I welcome the Bill — on the ground of consensus and on the ground of an achievement by an individual Dáil Deputy to produce very complex and important legislation. I hope this is not the last time a Deputy in Opposition or, indeed, a Deputy in Government in the backbenches, will bring forward a Bill of this nature — in this instance dealing with family law. It is a good day's work for Dáil Éireann and I thank the Deputy for bringing the Bill forward.

In relation to the Bill, it is not my intention to engage in a lecture on morality either inside or outside marriage. There are enough people trained in morality to get on with the business of telling us how we should conduct our lives. I do it by an instinct, I hope an instinct of decency. However, I can offer some little advice and observe on the horror and the eventual tragedy of marital breakdown. It is fair to point out to the House that there is surely no Deputy in this House untouched by marital breakdown, either within one's immediate family, within the extended family, uncle, aunt, brother or sister or a friend who is suffering in this country at present from either tension within marriage or marriage breakdown.

I do not want to be pessimistic about marriage because it is an institution that we cherish and do our best to protect against all the attacks on it from outside marriage. The family is a fundamental unit in our society. Inevitably it is the family against or with every other family. The family is first, second and last. As long as the family unit remains steady society benefits directly. It would be most unusual if, within our immediate or extended family, or within the circles in which we move, we did not know somebody with a problem of marriage breakdown.

I was one of those Deputies who was "guilty" of supporting the referendum on divorce. I was one of those people who expressed the view that, when marriage has broken down irretrievably, the State should provide for divorce. When a referendum was put to them the people decided, in their wisdom, that such a proposition was unacceptable at this time. Being a democrat, I accept the will of the people. I do not necessarily agree but one agrees to disagree and accepts their decision. Without making a political point I believe that the referendum on the subject was put too soon, that people were not prepared for it and that it will be put properly in, say, ten years time. It might be accepted then, if not by my generation, by that of my children, that they would have a different point of view. Although, viewing my children's generation, it would appear that they will be as conservative as mine. As is well known, one tends to be radical when young and become conservative when older.

This Bill is properly supported in principle by the Government. It is to be referred to a special committee of the House. I hope the Government do not support it in a begrudging manner, but rather give their full support to its principles. From the backbenches of the Government party I support it in an unreserved and hopefully generous fashion. I do not begrudge its thrust or intent in any way in what it seeks to achieve.

It is my respectful submission that the composition of the special committee of the House will be most important. It should be comprised of members of the House with a special knowledge of and concern in the whole area of marriage breakdown. The people who might be appointed thereto by their various parties would need to have shown a special interest in family law reform. I make that merely as a proposal. The Government can appoint whoever they wish. I would have no say in that matter but, for goodness sake, let people be appointed to the committee who have a special interest in the subject.

The provisions of this Bill seek, as the sole ground for separation, the concept of irretrievable breakdown. I understand the word "sole" to mean only and the word "irretrievable" that, "never the twain shall meet", that the marriage has irretrievably broken down.

As I understand the position in law at present with regard to judicial separation one can discharge a decree. For that reason it concerns me. Perhaps I am misinterpreting the meaning of the word "irretrievable". I should have thought that "irretrievable" would relate to the type of divorce I wanted and which the people decided we could not have. In relation to judicial separation I should have thought that "irretrievable" was a wrong concept. I am sure Deputy Shatter, when responding, will deal with that point. For example, section 1 says:

After the commencement of this Act the sole ground upon which an application for judicial separation (divorce a mensa et thoro) may be presented to the court by either party to a marriage and granted by the court shall be that the marriage has broken down irretrievably.

No doubt Deputy Shatter, in his able way, will dismiss my observation. However, I hope he will take it as one made in as constructive a manner as possible, based on my interpretation of the meaning of the word "irretrievable".

The question of mediation and counselling was dealt with thoroughly in the report of the Joint Committee on Marriage Breakdown. We should endeavour in every way possible to protect marriages against breakdown and, in that sense, look to the recommendations of that committee. That report set out parameters for mediation and counselling and the necessary requirements there for. Here I might refer the House to what is said at page 121 of that report, chapter 8, under the heading of, "Mediation" where the committee's opinion is well expressed. There are there set out the ground rules for a mediation service. That is the sort of service we should be providing before considering the finality of marriage breakdown.

I could not agree more with Deputy Flanagan's remarks about informality of court proceedings, dispensing with the wearing of wigs and gowns, etc. Indeed I would contend that not only should the wig be abandoned in family courts — where informality is necessary — but in all courts from the Supreme Court down to the Circuit Court. The gown perhaps is not intimidating, it saves one's clothing against the wear and tear occasioned in the course of one's daily practice but if abandonment of the gown would help create an atmosphere of informality, then so much the better. I would campaign strongly for the abandonment of the wig.

There is a problem vis-à-vis provision for children in the Bill, in that it does not expressly provide that a court, before granting a decree of judicial separation, must be satisfied that the arrangements made for each child of a marriage are reasonable and adequate in the circumstances. Conceding that, perhaps one cannot fit in as much as one would wish in a Bill of this kind, I would hope that, when it is referred to the special committee, there would be express provision made for children by way of counselling, accommodation, financial arrangements and so on, and that those provisions would be clearly spelled out.

Acting Chairman

I am calling Deputy Taylor-Quinn.

I am giving way to Deputy Colley.

Acting Chairman

I understand there is agreement that the Deputy shares her time with the Fine Gael Party. That allows the Deputy 15 minutes.

I welcome this Bill which is long overdue. It is a Bill which comes from a constituency colleague of mine. I have long had admiration for Deputy Shatter and the work he has done along these lines. The problem of marriage breakdown has been unattended for many years and is probably the most urgent problem in the social area. I believe the numbers involved are greatly underestimated. That could be due to the innate shyness in the Irish people and the wish to keep private one's business. I believe the census figures recently released indicating how many people said they were separated, underestimates the numbers involved.

The Bill introduces greater access to the remedy of legal separation. The former situation was almost a prohibition for most people obtaining a legal separation, even when they had acknowledged that their marriages had irretrievably broken down. The two possibilities of a remedy were to go to the High Court, a slow, cumbersome, costly process with very limited grounds on which they could claim a decree, or they could agree to execute a deed of separation. For many couples in the midst of a marriage breakdown, the latter is not an option. With the best will in the world, even if both of them wish to complete a deed of separation, getting to the nub of the matter, they cannot agree the details. This Bill allows many of those couples to come to court with far greater access and by proving that the one ground for separation exists, they are entitled to be judicially separated and the court is entitled to make orders ancillary to that separation.

I welcome the extra flexibility that is given to the courts because up to now it was extremely expensive for couples who wished to obtain a judicial separation. They had to initiate many separate actions which were in themselves costly and in the end were being dealt with on one occasion.

Again I want to welcome the removal of the fault element from obtaining a judicial separation. Earlier in the debate points were made as to whether the fault element is really being removed. I believe it is, as much as is humanly possible. By saying that the one ground for obtaining a judicial separation is irretrievable breakdown — certainly there may be, and will be, faults on both sides — the emphasis is not on determining who was at fault but simply what was the result of that fault on both sides, and if it had led to this breakdown.

The Bill is only part of the kind of reform that is needed in the marital law area. I welcome it wholeheartedly because it is a major step forward. It is a radical Bill in terms of what we have known so far, but it really only touches the surface of the kind of attitudinal changes we should be looking for and the kind of support services for marriage which we have denied marriage for so long.

I am starting with education. I do not just mean pre-marriage education. I am speaking about the kind of education which starts in the home, that will be continued in schools and that will be available before a couple get married. Deputy Flanagan referred to the fact that many people enter into marriage far easier than they enter a mortgage contract for a house. That is not good enough for the kind of contract marriage is and the kind of commitment we are asking people to make. We are pushing them into it with their eyes closed. This Bill deals with the result of possibly doing that, but we must look to the preventive measures which we are not providing.

Other areas we have to look at very seriously in conjunction with this Bill, are those relating to marriage counselling. I for one would not use the terminology "marriage guidance counselling" because that is misleading and I speak as a former marriage counsellor. The main element in counselling has to be enabling the couple to make up their minds about the direction they should be following. It is not guidance. That is a very important differentiation to make. The counsellor does not guide the couple, the counsellor facilitates and enables the couple to do that. Many people look for advice when they should be looking for counselling. We do not have those services available to us.

This Bill requires a lawyer to inform his or her client of the services that are available, the names and addresses of the people offering the services and to direct their clients to get help in that line. The simple facts are that there is one main organisation offering nationwide counselling, and that is run by the Catholic Church. There are a number of smaller organisations but there is no support coming from the State. The kind of support that has been offered for counselling by the State in recent years has been, to say the least of it, grudging. It has amounted to some £100,000 a year for supporting those kind of services. Considering the number of people getting married, the number who are married, and whose marriages are in difficulty, that sum is totally inadequate.

Mediation is another area which is referred to in this Bill and, as far as I am concerned, this should be increased in extent. We have one pilot project operating in Dublin. That may fold next year when its term runs out, and what do we do then? The role of a mediator is separate to that of a counsellor or lawyer. In fact, it is very much a preventive role, and if a mediator is working properly he or she will be able to prevent the couple going into court for the adversarial type of destructive situation we see so often nowadays.

Deputy Andrews unreservedly welcomed the Bill and I was very glad to hear him do so. However, I have to draw attention to the fact that the Minister for Social Welfare replying to Deputy Shatter said he welcomed the Bill, but he immediately went on to question the basic concept, that is irretrievable breakdown. To my mind, you can only define, parse and analyse the phrase "irretrievable breakdown" to a reasonable degree. My understanding of the change this Bill proposes is that there is a reasonable expectation that the relationship will not be resumed. That is as far as one can go. One does not have second sight and knows the relationship will be resumed, but all the indicators should point to irretrievable breakdown.

I mentioned the fault concept in the present legislation which has been so destructive and is removed in this Bill. That is extremely important, because at present if a couple are in difficulties and go separately to lawyers or solicitors, the solicitor doing his or her job will advise the client of his or her rights, and the best way of achieving those rights. That encourages exploitation of the difficulties as opposed to efforts to reconcile. It is built into the system. I welcome the move away from that because it allows tempers to cool. It allows people to stand back from the situation and to make a considered decision.

The Minister referred to the proofs required to establish irretrievable breakdown. He took exception to section 2 (1) (f) which says that the family and marital circumstances are such that it is reasonable for the applicant to wish to live separate and apart from the respondent and to cease to be obliged to cohabit with the respondent. Deputy Cowen also threw cold water on this provision and he could not see any reason for its inclusion. However, I know of many situations where that is very reasonable and useful. For instance, a couple may agree that they do not wish to live together but they cannot agree on the details or they may be living separate lives under one roof. I know of cases where houses have been physically divided, children living with the mother in one part of the houses and the father in the other. The father refuses to agree to a deed of separation, they cannot afford to go to court and, in that case, subsection (f) is exactly what is required. They have, indeed, reached the stage where their marriage has irretrievably broken down; they do not wish to live together but one or other party find that they have no redress.

Protection of children has too often been used as a weapon in marital warfare. It is all too easily used and any protection children can get against it is essential. However, the Bill merely allows the court to look for a report from other services regarding the welfare of the children. I would favour putting in the Bill that the court must, in any case where there is a disagreement regarding the children, refer to specialists for a report.

Provision for interim orders concerning custody, maintenance or access is very welcome because the period of time leading up to a court hearing, after the proceedings have been initiated, is fraught with difficulties and high emotions. In those cases, interim orders can help to defuse the situation so that a useful court hearing takes place. The right of the court to make orders regarding the family home or lump sum payments, particularly where a non-working spouse is involved, is just, because such spouse should have his or her contribution recognised and the family life to which they have contributed taken into account.

One aspect about which I have been particularly concerned for some time is in relation to where a family home is mortgaged or a loan obtained against it. Under present legislation, the spouse has an equitable right in that periphery but is not told about the mortgage or the loan and the first they know about it is when the sheriff is on the doorstep. At the very least, the spouse who has not a real interest on paper in the property should be notified of any loans or mortgages made against the property.

Finally, I want to refer to the provisions regarding the requirement to refer to counsellors. Couples in difficulties should be referred to counsellors but my experience is that many couples who reach the point where they go to a solicitor have gone past the stage of going to counsellors. That is not to say that some of them would not benefit from counselling but I am very fearful that it will simply clog the existing counselling system if couples whose only interest in going to a counsellor is simply to fulfil the rigour of the law and to have another stamp on their passport to judicial separation. I am afraid that it will be more of a hindrance to the way the Bill should work than a help. It certainly could become a hindrance to those who are legitimately seeking counselling at an early stage in their difficulties and when they may have a far greater chance of reconciliation.

The system of courts for marriage breakdown suggested in the Bill is welcome. However, marriage tribunals would be preferable in the first instance. I am not saying that they should have a total say in this sphere but just in the first instance, to bring it away from the formality inherent in a court.

I am very pleased that this Bill is before the House and that the Government allowed it in Private Members' time. I also welcome the fact that they are supportive of the Bill. It is one of the results of the Oireachtas Joint Committee on Marriage Breakdown which sat for over two years. Of the 11 Dáil Members who sat on the committee, there are still seven in the House. As one who sat on the committee, I am particularly pleased that the Bill is now before the House. One of the recommendations made by the committee was that a referendum should be held to change the constitutional ban on divorce. The referendum was held and lost and the next initiative is the presentation of this Bill. I commend Deputy Shatter for the trojan work he has done in assiduously preparing the Bill and the manner in which he has presented it. The committee worked extremely hard; they met most weeks on two occasions and sometimes during the weekends. There was a remarkably high level of attendance at all the meetings and a very high degree of interest expressed by all the members. There was a great degree of sympathy and concern and the result was that we presented a report which had the agreement of all the representatives on the committee.

Many recommendations were made by the committee but most of them cannot be dealt with in this Bill which deals very specifically with legal reform. There were other recommendations in relation to the protection of marriage and family life and we dealt extensively with education, counselling and mediation and recommended that the minimum age for marriage should be 18 years. I hope at some future date that legislation will be introduced to deal with these issues.

I am happy that the grounds on which judicial separation should be sought are the grounds of irretrievable breakdown. The committee recommended that the court should grant a decree of judicial separation if it was satisfied that the marriage had irretrievably broken down and that irretrievable breakdown should be the one and overall ground for the grant of a decree of judicial separation. The committee recommended that in considering whether a marriage had irretrievably broken down the court should satisfy itself of one of a number of aspects, all of which are incorporated in the Bill and are practically as recommended by the Joint Committee on Marriage Breakdown. This is far more commendable than the situation that exists at present where you have to judge on a fault or of accusing one partner vis-à-vis the other. This situation leads to a lot of harassment, to a lot of bad feeling and indeed goes from bad to worse, not helping in any way to come to any type of satisfactory conclusion particularly where children are involved. What is recommended in this Bill must be commended and did have the full support of the Joint Committee on Marriage Breakdown.

Deputy Andrews was particularly concerned that the Bill did not provide adequately for children. On going through the Bill I find there are a number of sections which deal extensively with the protection of children. Section 11 sets out the criteria the court is to have in regard to the making of an order relating to a family home, pursuant to section 10 (1). In exercising the latter jurisdiction the court is required to have regard to the welfare of the family as a whole and in particular must take into consideration the following matters:

(a) that where a decree of judicial separation is granted it is not possible for the parties to a marriage to continue to reside together;

(b) that proper and secure accommodation should, where practicable, be provided for a dependent spouse and any dependent child of the family.

Section 18 effectively provides that where a maintenance order is made by the court such maintenance payments should be made to the local office of the District Court in the same manner as such payments are currently made under the Family Law Act, 1976, unless the spouses agree to a different method of payment.

Section 19 gives power to the court to make an attachment of earnings order, to require the employer to deduct the necessary moneys where the spouse has failed to make the payments directly to the court. It protects the interests of children to a certain degree so I do not understand why Deputy Andrews has some difficulty with it.

In relation to the overall court procedure — an issue we dealt with very extensively in the committee — we were particularly concerned by the present manner in which family cases are conducted. We were concerned particularly that spouses were subjected to being out in corridors or halls for everybody to see, with one barrister running one way and another running the other way. The other problem was the intimidating manner in which court proceedings are conducted and the effect that has on the applicants for judicial separation. It was recommended in our report that, as far as possible, all this be changed. We recommend that the wig and gown be disposed of and that all the formal trappings, more associated with mid-17th century legal behaviour be done away with. While Deputy Andrews agrees with getting rid of the wig, I say that all the trappings should be got rid of. As Deputy Shatter recommends in the Bill the court hearings should take place on days when the other courts are not taking place and that, as far as possible — although we do appreciate that there is a financial difficulty in relation to providing separate buildings at this stage — cases be heard somewhere conducive to cordial discussion rather than in a formal court setting.

In rural areas that might be more possible than in some of the courts in the Dublin area. There is one thing in particular I am happy that Deputy Shatter has included in this Bill and that is that the family law court be of similar status to the Circuit Court. We on the Joint Committee on Marriage Breakdown had much discussion on that issue and we examined it closely. There was a strong body of opinion that the court should have the status of the High Court. I believe that the High Court is not as accessible or as available to the public at large as is the Circuit Court is. The Circuit Court sits in practically every county and as such is more accessible to the people. For that reason it is good that this Bill recommends a Circuit Court status for the family court.

I also welcome the fact that the one application could cover a number of issues. At present various applications are being made for different areas, for example, maintenance orders, barring orders, separation agreements and judicial separations. There are many justices and judges dealing with many issues relating to the same marriage. This Bill recommends that they be all incorporated into the one application. That is good because it serves a number of purposes. It reduces the cost on the people concerned and, as well as that, the process can be got through much more speedily. That is welcome.

Sections 23 and 33 deal with the area of informality. Previous speakers have also recommended these sections. Overall, the Bill does a great service to people who are in a very difficult situation, who are in extreme difficulties and who need to be treated in a humane and civilised way. This Bill does something to help them, to relieve them of some of the fears they have at present. It makes the situation more relaxed and less formal. The Bill is a major and radical step forward. It is the first major radical piece of legislation that has been present in relation to family law in the past 200 years. It implements many of the recommendations of the Joint Committee on Marriage Breakdown. As I said previously, there are many other recommendations which it is not within the ambit of this Bill to deal with but which it is within the ambit of Department of Health Bills or Department of Social Welfare Bills to deal with in the future. I hope they will be dealt with.

The Bill specifically provides for the granting of a decree of judicial separation when a marriage has irretrievably broken down and that is extremely important. It provides for the circuit family court which could be the principal court and this is of particular significance. It confers on the court comprehensive legal powers to make financial, property, custody and other orders necessary for the protection of dependent spouses and children following the granting of separation decrees.

The Bill also provides additional protection for wives and children by enabling the courts to make lump sum payment orders and property transfer orders. It requires the court to recognise the contribution made by the wife who works in the home and that is something that has not been taken into serious consideration previously. It states that the court, when making financial and property orders, must have regard to the contribution made by each spouse to the welfare of the family, including any contribution made by looking after the home or caring for the family, to the income earning capacity, property and financial resources of the other spouse and indeed to the effect on the earning capacity of each spouse of the marital responsibilities assumed by each during the marriage. It reduces very significantly the financial cost of family law court proceedings. That is very important because at present family law court proceedings are not available to a very large percentage of the population because of the huge high expense involved. There are many people who would dearly love to be in the position to go before the courts to have their matters settled but they are unable to do so.

This Bill will also radically reform the approaches to the court by ensuring that Circuit Court proceedings are not heard at the same time as criminal proceedings and other legal actions. It will require the District, Circuit and High Courts when involved in family law matters to ensure that family law proceedings are as informal as is practicable and consistent with the administration of justice. It will also prohibit judges and barristers——

I would remind the Deputy that her time has elapsed but Deputy Kitt has indicated that he is not opposed to the Deputy having a minute or two of his time.

The Bill is highly commendable in that it will prohibit judges, barristers and solicitors from appearing in family law proceedings wearing wigs and gowns and all of the formal trappings which go with it. It will confer independent power on the courts when determining custody cases to seek independent medical, psychiatric, psychological or social worker reports when necessary to do so in the interests of a child's welfare.

This Bill is a very comprehensive one and there is nothing within the legal ambit which has not been dealt with. Again I compliment Deputy Shatter for the tremendous work he has done and for the sincere and humane way in which he has dealt with this matter. I am delighted that he has been afforded the opportunity to bring this Bill before the House and nationally I think everybody recognises his expertise. I am very happy that the Government party on this occasion have seen fit to support the Bill.

At the risk of being repetitive, I, too, wish to commend my constituency colleague, Deputy Shatter, for bringing this important legislation before the House. I am aware of the work which has been put into preparing this Bill and I wish to join with the many other speakers who to date have complimented Deputy Shatter.

This Bill is a response to the evergrowing problem of marital breakdown in society and also the many recommendations made by the Oireachtas Joint Committee on Marriage Breakdown. The fact that the present law in relation to the obtaining of decrees of separation is based on legislation introduced in 1870, over 100 years ago, is an indication of the urgent need to update our legislation in this area to meet the needs of the many couples involved in cases of marital breakdown. It is quite obvious that the grounds for marital separation must be broadened, given the fact that the old grounds upon which a decree of separation can be granted is upon proof of adultery, cruelty or unnatural practices. Therefore, putting it simply, this Bill is overdue.

In some ways the fact that it comes before the House in Private Members' Time is breaking a mould in regard to the introduction of this type of legislation and I believe that this is a good thing. I would like to see this aspect of Dáil procedure developed, in particular where it relates to social issues on which there would be all-party support and consensus, as appears to be the case on this issue. The Minister indicated to the House that the Government proposals for changes in the law on separation are at an advanced stage of preparation. Therefore, in one sense the Bill is most timely in that there is a coming together of much work on both sides of the House. I must say that Deputy Shatter in particular deserves our congratulations for initiating the necessary reform.

Any of us who conducts advice centres will recognise the growing problem of marital breakdown and the tragic circumstances in which many people find themselves. Many spouses are trapped in, due to archaic legislation. The passing of this legislation will mean that there will be new hope and a chance of a new life for such people. A couple will be able to get a judicial separation if their marriage breaks down irretrievably. Most couples will still resort to comprehensive deeds of separation. It is obviously better for couples to come to mutually satisfactory solutions rather than to involve themselves in the courts. I believe that in section 4 of the Bill an obligation should be placed on the client to respond to a solicitor advising reconciliation and mediation. I think there could be a strengthening in this area and it is one improvement in the Bill which I would recommend.

Many of these points will come up again on Committee Stage and the real debate will take place on that Stage. The fact is that many spouses cannot agree to the terms of separation and the need to resort to the courts is there. This Bill responds to that reality. The Judicial Separation and Family Law Reform Bill is being debated in a spirit of all-party cooperation and reality based, I would presume, on the lengthy deliberations of the Oireachtas Joint Committee on Marriage Breakdown. Obviously, that has been very productive and this all-party approach has emerged from those difficult and lengthy deliberations. It is obvious to me that the work done in that committee over the years has been most worthwhile.

There is one other constructive criticism which I have to make and Deputy Taylor-Quinn referred to the fact that my colleague, Deputy Andrews, did refer to this. It is in regard to the children. I must express concern about the welfare of children in relation to this Bill in that it does not provide for the court, before granting a decree, to be satisfied that the arrangements made for each child are adequate and reasonable in the circumstances. Proper arrangements must be in mandatory form for any dependent children. It should not be left to the discretion of the courts. Family law courts should be established and successive Governments have failed to address themselves to that issue.

The procedural changes embodied in the Bill are to be welcomed and these again have been referred to by many speakers. The fact that family business in the courts will be conducted as informally as possible in a very positive thing and the fact that judges and barristers will not wear wigs or gowns is a good development and very much a step in the right direction. I welcome the fact that the Government have expressed support for the "principle" of the Bill. As I have said, I have no doubt that the real debate will take place on Committee Stage. Taking into account that this legislation will help so many people in real difficulties I hope that the positive atmosphere which has been building up during the course of this debate will continue into Committee Stage.

The census figure of 37,245 people affected in a legal sense by marital breakdown tells its own sad story. The real figure is no doubt much higher as many people who suffer these problems do not come forward. We are all aware of this. Deputy Shatter has tried in this Bill to bring forward the most comprehensive measures possible in this area. We have reached a new level of maturity in this House when an Opposition Deputy can play such a positive and prominent role in bringing forward new legislation. As Deputy Shatter is now about to reply I will reserve any future comments for Committee Stage but, like my colleague, Deputy Andrews, I will conclude by saying that I welcome the Bill.

I should like to thank all those who have contributed to the debate. The debate on this Bill has run for two weeks and I think it has been an exceptional debate. I cannot recall any issue being discussed in this House since I was elected in 1981 in which all of the parties here, of different ideologies, backgrounds and political beliefs, have come together in a non-party political way to confront a major social issue and to deal with legislation in a constructive way. Many of the criticisms and comments which have been made have been by way of constructive criticism by people who wish to ensure that when this legislation is enacted it will have the intended effect which is to provide a modern and humane code of family law which will enable people whose marriages have collapsed to separate in a civilised way and in a way in which the law would not exacerbate marital conflict but rather seek to ameliorate it.

I welcome the fact, as Deputy Kitt correctly said, that in the last couple of weeks we have in a sense — to use a phrase that Deputy Harney on occasion used — managed to break a mould. The House has reached a new degree of political maturity. I welcome the fact, if I can be permitted one indulgence in making one partisan comment in a debate that has not been partisan, that it is the Fine Gael Party who are leading in breaking the mould. I would hope that the constructive debate we have had in the last two weeks, the use of Private Members' Business to bring forward a major social legislation to deal with a reform that is badly needed, can be repeated time and again during the lifetime of this Dáil to bring forward other measures. I have already put on the record of the House that the Adoption Bill we published last year, and the Bill before us tonight, are among a number of social reforming measures that the Fine Gael Party in Opposition intend bringing before the House in Private Members' Business. I hope that the precedent we are establishing in this area will be mirrored so that finally Members can be perceived as acting as legislators and not merely be seen to be the playthings or the tools of the Government of the day engaged in a game of confrontational politics from the Opposition benches or from the Government benches, as the passive supporters of measures they may occasionally not approve of.

The Bill represents a new departure. I am not saying that in a sense myself; I am saying it to praise all the Members who participated in the debate. I look forward to a constructive Committee Stage when we will tease out many of the worries that have been expressed and look at the different sections of the Bill. It is not going to be possible for me tonight to deal with all the issues raised by those who have contributed to the debate. However, I want to refer briefly to some of them because they will, no doubt, be in the forefront of the minds of many Deputies who will be involved on Committee Stage.

In opening the debate on the Bill I welcomed the constructive approach of the Government in putting it on the record of the House before Christmas that they supported the Bill in principle and would not be opposing it on Second Stage. I reiterate that welcome tonight but I have to say that some aspects of the contribution of Deputy Woods, on behalf of the Minister for Justice, give rise to serious concern in the context of what the Bill is seeking to achieve and what the thinking might be in the Minister's Department. It appears to be at variance not merely with the intent of the Bill but at variance to a very strange degree with the recommendations of the Oireachtas Joint Committee on Marriage Breakdown.

As the many speakers on all sides of the House who were members of that joint committee have said, the Bill seeks to accurately reflect the concensus that was reached in that committee with regard to marriage law reform and, in particular, with regard to our laws relating to marriage breakdown and judicial separation. The Oireachtas Joint Committee reported in 1985 and some two years before that committee reported the Law Reform Commission also published a report dealing with the law relating to judicial separation. The report of the Law Reform Commission was considered in detail by the joint committee and was considered and referred to by many of the groups who made written submissions to the joint committee and by many of those who made oral submissions to that committee.

I have to record, and I am sure others such as Deputy Harney and Deputy Taylor who contributed this evening will confirm, that there was universal agreement within the joint committee that the approach recommended by the Law Reform Commission should not be adopted. Yet, when the Minister came to deal with some of the specific provisions of the Bill practically all of the criticisms he raised with a view to indicating suggested amendments he may propose on Committee Stage derive from proposals of the Law Reform Commission which were rejected by the joint committee.

It seems to me that in the deliberations of the House on a Bill such as this the views expressed by a joint committee of the Oireachtas should be taken very seriously in so far as they differ from what the Law Reform Commission said. That should be so in particular because the joint committee engaged in a consultative process that was alien to the way in which the Law Reform Commission worked during the lifetime of the previous Law Reform Commission. The most important difference is that the Law Reform Commission sought to retain in the context of separation laws the old confrontational approach. The Law Reform Commission recommended, in effect, that the current law be retained and a couple of new grounds be added on upon which a husband or a wife whose marriage has broken down could obtain a decree of separation.

The Law Reform Commission would have retained generally, though there is one exception to this, the concept of the matrimonial offence, and generally imposed upon the courts a requirement that they label a husband or wife as the guilty party when a marriage collapses. The joint committee, as many speakers have said, sought to take some of that confrontational approach out of the law and unanimously recommended that irretrievable breakdown should be the one overall ground upon which a decree of separation should be granted. By proposing that irretrievable breakdown should be the sole ground, the joint committee recognised that the committing of adultery or cruelty which currently constitutes a ground for getting a separation decree, or the desertion by one spouse of the other, is most often simply an external manifestation or symptom of marital failure but is rarely the sole cause of marital breakdown.

In the vast majority of cases the joint committee recognised that both a husband and a wife in marriage by their behaviour either intentionally or unintentionally to varying degrees most often contribute to the permanent sundering of a marital relationship. They recognised that a law founded on the doctrine of breakdown would accord with social reality by recognising this fact and effectively accepting that the purpose of separation proceedings is not to provide a procedure designed to assign blame or determine guilt for marital failure but is to provide a judicial procedure that can give factual recognition to the inability of a husband and wife to maintain a stable and lasting relationship with each other. Indeed, the concept of marital breakdown emphasises the importance of what could be described as the relationship concept of marriage as opposed to the contractual concept of marriage. In a sense such an approach acknowledges that there is nothing to be gained either for a husband or a wife, or for society in general, by ultimately labelling a particular husband or wife as guilty or innocent.

Indeed, the joint committee very cogently made the point that whenever a marriage breaks down, in a large number of cases there are still young children, and the husband and wife who separate, despite the fact that they are living apart from each other, will for many years in the future have to co-operate with each other as parents of their children. The labelling of one spouse as the guilty person when a marriage has broken down does not assist in any way the possibility of a husband and wife as mother and father, as parents, in the future co-operating with each other in the interests of their children.

It seems to me that the approach of the Minister, which, in fairness to him, appeared to be an acceptance of what the Law Reform Commission said without realising that the joint committee rejected its recommendations, and his suggestion that he may seek to amend the Bill to accord with the recommendations of the Law Reform Commission, seems to be based on a belief that in some way it is in the interests of husbands and wives that we label or isolate one or other of them as the person solely responsible for a marriage breaking down. I would take the view that this is not and should not be a goal of social policy and that rather than minimising family divisions and promoting future harmony between a couple following breakdown such an approach would simply perpetuate and exacerbate family conflict. It should be a major social policy consideration that we seek to minimise conflict.

The Minister and some speakers on the Fianna Fáil side of the House said that in the context of irretrievable breakdown there are six sets of facts that can be established in a court by which it can be established that a marriage has irretrievably broken down. They pointed out that three of them are themselves a matrimonial offence concept, proof of desertion or proof of cruelty. Each of these, as recommended by the Oireachtas Joint Committee, is not used to label a spouse as guilty or innocent. The proof of either of these facts merely constitutes evidence that a marriage has broken down. The fact that a husband or wife has deserted the other is very clear evidence that a marriage has collapsed. Upon establishing that either of these things has happened, the court can make the decision that quite clearly the marriage has irretrievably broken down. The decree obtained from a court does not label any spouse as the guilty or innocent party. Anyone who practices in the area of family law as lawyer, social worker or guidance counsellor will say it is very rare that a husband or wife leaves home simply as a result of a whim. It normally takes two people to create the problem. Within the context of this Bill it is quite possible for a couple to get a decree of separation without any necessity to prove desertion or adultery.

Deputy Cowen and others asked why, if a couple agreed to separate, they should get a decree in the first place, because within the context of this Bill it is established that if a couple have been living apart for a year and they both consent to a separation a decree can be obtained. The purpose of including this provision, as the Oireachtas Joint Committee recommended, is that a couple may be living apart for a year but they may not be able to agree as to what future arrangements should operate between them with regard to the family home, children, support payments and a whole variety of things. This Bill will facilitate them in getting the court, through a simple and less expensive procedure, to resolve those problems.

Section 2 (1) (f) has been a cause of some concern to the Minister, Deputy Woods, and a number of other Fianna Fáil Deputies who contributed. Deputy Colley in referring to that provision set out very articulately why it is there. I could not say it any better than she did but it bears repeating. Some Members opposite seem to think that this provision has no particular function and would achieve nothing. It is one of the most important subdivisions of section 2 (1). Currently there is a particular problem which affects many husbands and wives whose marriages have broken down. A husband and wife who have been married for many years may be completely and totally incompatible. The husband does not assault his wife and neither party has committed adultery. They are living in the one home engaged in what could best be described as a matrimonial war of attrition and they cannot reach any agreement between them as to the basis upon which they can separate. As things stand, the courts cannot give them any assistance in separating.

The provision in section 2 (1) (f) was teased out by the Oireachtas Joint Committee having heard at great length of these difficulties. I was very sorry to hear the Minister dismiss that provision as being not very relevant and too vague. It is phrased in the way the Oireachtas Joint Committee recommended after two years of deliberations. If that provision were removed from the Bill on Committee Stage, it would leave not hundreds but thousands of husbands and wives with no hope and no remedy to extract themselves from the unhappy position in which they are living with each other but not together. As the Oireachtas Joint Committee heard from child psychiatrists and from psychiatrists from the Royal College engaged in adult psychiatry, it is in the interests of children living with a couple engaged in that form of matrimonial war of attrition that a means be found whereby the husband and wife can separate on a civilised basis and the children can live in a stable home environment with one parent as opposed to living in a warring environment with two. That provision is of great importance.

I will not have time to deal with many other issues raised by Deputies which we will tease out on Committee Stage. There is, however, a further matter to which I wish to refer. I was astonished to hear some Members opposite suggesting that whenever a decree of separation was granted both the husband and the wife would automatically lose their inheritance rights. This was something the Oireachtas Joint Committee expressly rejected and something which, most curiously, the Law Reform Commission recommended. It is most curious that the Minister should have come up with this proposal.

I do not wish to introduce a note of contention but not very long ago during the divorce referendum campaign various Members opposite were stomping around the country telling people not to vote for divorce because if they did husbands and wives would automatically lose their inheritance rights. It is extraordinary that in a measure in which we are seeking to provide additional protection for husbands and wives, some Members opposite should now be saying that when the court grants a decree of separation husbands and wives should automatically lose their inheritance rights. This is simply a reiteration of a very peculiar recommendation emanating from the Law Reform Commission. This proposal would, if implemented, result in many dependent wives and some dependent husbands being left destitute upon the death of the maintenance-paying spouse in circumstance where at the date of the granting of a separation decree there was no family property in existence which could be transferred to the maintenance recipient or to the dependent wife to provide some security for the future. The Oireachtas Joint Committee recommended that the court should merely be empowered to vary or discharge a spouse's rights of succession following the granting of a decree of separation, having regard to the circumstances of the parties in the context of determining what orders, if any, should be made for the division or transfer of property. There will be many instances under this Bill where both the husband and wife would wish that the wife had the security of the family home being placed in her sole name during her lifetime without having to wait to receive some property on the death of her husband. There are many marital situations where there is not much property, where the wife is getting maintenance from her husband, there are no large amounts of property to be transferred to her and the husband does not have the financial ability to make lump sum payments. To introduce a provision whereby both husband and wife would automatically lose their inheritance rights when a decree of separation was granted would not only leave wives destitute but would act as a barrier to people in poor economic circumstances, particularly wives, seeking the protection under this Bill to get a decree of separation in circumstances in which they would require one. I would hope the Minister would not come to Committee Stage with that amendment.

I want to express disappointment at the Minister's indication that during the lifetime of this Government there is no possibility of their providing a unified system of family courts. In reforming the court structure we have done all we can do in this Bill in a Private Member's measure. I hope the Government will reconsider that approach bearing in mind that four members of the current Government are parties to the Oireachtas joint committee report which recommended unanimously the establishment of a unified system of family law courts.

I thank all Members who contributed to this debate. It is something of a new departure that the House engaged in debate on an issue such as this. Further debates of this nature will do a lot of good not merely in the context of bringing forward much needed legislation but of improving the image of members of this House amongst members of the general public and improving our credibility as legislators. I look forward to Committee Stage. I hope we will get down to working in committee very speedily and I hope that it will be an aim of this House to have the Bill passed through all stages in this House before the summer recess. I hope we will work as a unified team in this House to achieve that, with a view to bringing the Bill back into this House not too long after Eastern to take Report and Final Stages so that this Bill will, with as little delay as possible, implement the badly needed reforms that so many people now look to us to provide to relieve them of a great deal of marital misery.

Question put and agreed to.

When is it proposed to make an order for the referral of the Bill to a special committee.

We hope to make that order early next week.

Subject to agreement.

Agreed, subject to agreement with the Whips.

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