I understand there has been agreement between the Whips that representatives of the other parties in Opposition shall be allowed to make brief explanatory statements. In the circumstances, I am, of course, prepared to allow such statements but they should be brief, I suggest five minutes for each spokesman from each party. I will be putting the question when the Minister replies.
Private Members' Business. - Judicial Separation and Family Law Reform Bill, 1987 — Report Stage: Motion for Recommittal.
I move:
That Dáil Éireann pursuant to Standing Order 102 of the Standing Orders relative to Public Business directs that the Judicial Separation and Family Law Reform Bill, 1987 in whole be recommitted to the former Special Committee on the Bill and the first meeting of the Special Committee following recommittal shall take place on Wednesday, 7th December, 1988 at 5 p.m.
The Judicial Separation and Family Law Reform Bill as published was designed to reflect the political consensus of the Oireachtas Joint Committee on Marriage Breakdown. Fine Gael intended to provide a modern legal framework to enable the courts to grant separation decrees without having to establish fault, to provide mechanisms to facilitate reconciliation and to provide greater protection for dependent spouses and children.
Our only wish was to provide the best possible legislation in this area and at all times we have striven to avoid the usual adversarial approach to legislation that we see too frequently in the politically charged atmosphere of the Dáil Chamber. We welcomed the decision made by the Government to support the Bill on Second Stage. During the lengthy Committee Stage we took on board amendments tabled by Fianna Fáil, the Progressive Democrats and the Labour Party which improved various provisions in the Bill. We opposed amendments in Committee that we believed would fundamentally change the Bill and diminish the protections contained in it for dependent spouses and children and we were grateful for the support given to us in this by the Progressive Democrats, the Labour Party and The Workers' Party.
Normally, amendments defeated at Committee Stage cannot be re-introduced. This, however, does not apply to a Private Member's Bill. During Report Stage last week, Fianna Fáil re-tabled a series of amendments that had previously been rejected at Committee Stage. A number of these are not only contrary to the Oireachtas joint committee's report which was endorsed by four Ministers — Deputy Woods, Deputy Flynn, Deputy O'Hanlon and Deputy Geoghegan-Quinn — but also fundamentally undermine the Bill to the extent that if it were enacted, with some of these amendments still contained in it, the law would be a good deal worse than it is at present.
We believe there is no significant support outside this House for the amendments Fianna Fáil have introduced. They are not based on any coherent philosophy.
Criticising the Bill for being too liberal, Fianna Fáil removed irretrievable breakdown as the one overall ground for obtaining a separation decree and also removed a provision that would have enabled the majority of spouses to separate without the necessity for judicial condemnation of the behaviour of either spouse. Criticising the Bill for being too conservative, Fianna Fáil deleted a provision designed to encourage a couple who experience difficulties during the first few weeks of marriage to reconcile rather than go to court.
Criticising the Bill for not providing sufficient protection for deserted wives, Fianna Fáil amended it so as to automatically disinherit any deserted or battered wife who obtains a separation decree regardless of whether the courts make alternative provision for her future financial security.
We believe we have a duty to attempt to put right the damage Fianna Fáil have done to this Bill. We believe we have an obligation to the unfortunate casualties of broken marriages to ensure that a measure is not enacted by the Oireachtas which could greatly add to their marital misery and personal difficulties.
At all times, we have been anxious that this legislation be speedily processed through this House. We recognise the urgent need to reform a law that has remained unchanged for over 100 years. We do not believe, however, that any party in this House, or any individual Deputy, will receive any public thanks for the enactment of a piece of legislation that contains fundamental defects. Putting this Bill back into Committee, in accordance with Order 102 of the Standing Orders of this House, will give the Government time to reflect on their actions. It will provide an opportunity for all Members of this House to re-establish a consensus approach to enable necessary changes to be made to the Bill and provide what could best be described as a legislative cooling off period or a legislative moratorium on the Bill. Fine Gael believe we have a duty to ensure that at the very least the Bill's enactment will genuinely result in a substantial improvement in the legal framework available to assist the victims of broken marriages to separate in a civilised way, and will enable battered or deserted wives seek separation decrees without fear of automatic disinheritance and possible future destitution.
We believe the mechanism of Standing Order 102 provides a new opportunity to get this Bill back on the rails. We would hope to have the support of all parties and all Deputies, be they Members of parties or Independents, in recommitting this Bill for reconsideration of the damage that has been done to it so that we can reassess the provisions in the Bill with a view to turning it again into a compassionate and humane piece of legislation properly designed to confront the reality of broken marriages.
The Progressive Democrats have always favoured the principle of updating the law on marital breakdown, particularly widening the grounds on which judicial separation could be granted. We have stood by this principle since we were founded, and we are in favour of progressive social legislation which remedies the ills in our society.
When this Bill was introduced by Fine Gael we supported it, we suported the principle behind it and many of the major provisions in it, and on Second Stage we spoke to that effect. The Second Stage was carried by a majority of the House.
In the Special Committee the House voted once more to keep the principles contained in the Bill as initiated, and they voted in opposition to the amendments tabled by the Minister for Justice, and which were retabled on Report Stage. Those amendments were an anathema to the principle of the Bill, particularly the amendments relating to irretrievable breakdown, the move away from a fault based approach to the granting of judicial separations and the general approach to the necessity to prove if one spouse has been at fault. As I said, the Special Committee voted to maintain the Bill as presented on Second Stage.
The Report Stage of the Bill was taken in the House as a whole and the Minister reintroduced his amendments. I believe the result of the votes taken here in the last week or two have been at variance with the expressed wishes of the House on Second and Committee Stages and do not reflect the wishes of the House nor, as Deputy Shatter said, the wishes of the public at large, many of whom are waiting for this Bill to be passed so that they may avail of its provisions because those people are not able to obtain decrees of judicial separation as the law now stands. Bearing that in mind, I still feel that our duty as legislators would remain unfulfilled if we allowed the Bill as it now stands, following the amendments that have been passed on Report Stage, to be enacted into law and forced spouses who are in real difficulties and need amending legislation to comply with this legislation.
As I mentioned, the concept of irretrievable breakdown was in the initial Bill passed on Second Stage and Committee Stage. It is in keeping with the report of the Oireachtas Joint Committee on Marriage Breakdown. It moves away from the fault-based application for a decree. It does not move entirely away from it; that is a necessary part of this type of legislation, but it allows couples to apply on the basis that they are not imputing the fault on either side.
The other major difficulty and the major flaw with the Bill as it now stands is that succession rights must be extinguished if a decree of judicial separation is granted. There is no doubt about the immediate effect of such a provision, that is it will deter hundreds if not thousands of people from applying for judicial separation decrees on the basis that they may not obtain a property or financial settlement, and if they do not and they get a decree they will have no succession rights. No discretion is left to the court in that matter. That is a major flaw and if it is enacted in this form it will be wholly at variance with the attempt being made to improve the legislation in this area.
Those who are practising in family law daily have pointed out to me and to other Deputies in this House that the way this Bill is now framed will be very impractical as regards working with spouses and with the difficulties they face. They indicate they feel the Minister and his advisers have not been fully advised on the implications of the amendments they have put down. In that case it is quite in keeping with our duty as legislators to ensure that this legislation is passed in the most correct form possible. Therefore, we are supporting the recommital to the Special Committee. It is not unusual to recommit a Bill to Committee Stage at some stage before Fifth Stage. It is unusual for the whole Bill to be committed but Standing Orders provide for it and I see no reason why in this case where the situation warrants it the whole Bill be not recommitted.
Finally, let me say that we stand by the principles enunciated in the Bill as initiated. I believe we would be failing in our duty if we did not use the methods at our disposal to ensure that the ideas and principles behind that are enacted.
The contribution I intend to make will be brief. Unless the House makes the correct decision tonight we will be doing a grave disservice to those people who are suffering now in the throes of marriages which are causing a great deal of pain and hardship. The Bill before us as amended in the last couple of weeks, while it is a major advance on the status quo, is still unacceptable. There can be no doubt about that. In particular the provision inserted on Report Stage which has the effect of depriving one partner to a marriage of succession rights in all cases even though the marriage is still a full marriage in the eyes of our Constitution and our law, in the view of the Labour Party is a disastrously mistaken provision. If we enacted legislation which contained that provision it would be seen, rightly, as anti-woman. What we sought was that the court should be left with the discretion whether succession rights should be maintained or deprived.
On the other hand, legislation is needed urgently in this area. Every one of us know of people who are suffering and who would find relief from the passage of this Bill with all its faults. I have heard it said by pressure groups and, indeed, by Deputies that it would be better to have no legislation at all than to have this Bill as amended. I regard that statement as nonsense and the height of irresponsibility. If the decision is taken to recommit this Bill to the Special Committee it is almost inevitable that it will not see the light of day again this side of a general election. It would take some months at least in Committee, if amended there it would have to come back to the House on Report Stage again and then go to the Seanad, and we know what might befall it there. Was it not Deputy Dukes himself who told us quite recently that he expected a general election to take place within months rather than later? It would be irresponsible of us to allow that to happen without at least making every effort to prevent it.
On the other hand, if this motion is lost and the Bill goes forward in its amended form we will be left with a measure that falls far short of what is reasonably required in modern day Ireland.
For those reasons I want to put this proposal to all the contesting parties in the House tonight. From various conversations I have heard I am satisfied that there is the beginning of a will to solve this problem and a desire to end the political footballing that has taken place over this issue in the last couple of weeks. If all parties in the House agreed to a short moratorium there might well be a chance of reaching an agreement that would enable the passage of the Bill to be completed quickly with no major deviation from the important principle we all seek to establish. Therefore, I am suggesting to Fine Gael that this motion not be put to a vote tonight and that further discussion of the Bill be suspended for one week. I am asking Fianna Fáil to agree to this suggestion. In the course of the next week there would be time for all the parties to sit down and endeavour to reach common ground about the issues that devide us. In the event that agreement can be reached in a week we would all be doing a major service to the people we represent. If it cannot, the Labour Party are prepared to make sufficient time available from their allocation of Private Members' time next week to enable Fine Gael to have this motion moved and decided upon. Nothing would be lost by either party in agreeing to this suggestion and we would all have an opportunity to use such a cooling off period to the best possible effect. Therefore, even at this late stage I am appealing to Fianna Fáil and Fine Gael to defer this matter for one week to see if that service we must contribute to so many of the people of Ireland who need a good Bill could be achieved without this adversarial contest on this issue in the House tonight.
Throughout the debate in regard to this very important legislation one of the jobs that taxed all of us on the Opposition side was an effort in some way to find a common cord of consistency in the position of the Government in response to various provisions in the legislation. It started out, we understand here, when the Bill was moved for a Second Reading with the indication from the Taoiseach that it was legislation that could be easily accommodated by all parties on all sides of the House. For that reason we moved, we understood, in common agreement to Special Committee. There some of us were somewhat surprised at the scale of the amendment sought to be pursued by the Fianna Fáil Party. Their position was firm at the outset but it was clear as debates developed that the firmness with which the initial amendments were pursued was wilting on the Fianna Fáil side. We understood, or perhaps naively thought, that might have been in the face of reasoned debate and argument. Many of us were concerned at what might well happen to the legislation when it moved from this House to the Upper House, but it was always a position that, should it be amended substantially there, as many of us thought it might because of the overwhelming odds of Government in any issue in that House, at least we could address those matters again and put them right on reversion to the Dáil.
What has taken us utterly by surprise and has brought havoc to this legislation is the position taken by Fianna Fáil on Report Stage over the last two weeks. The scale of the amendment has totally emasculated the legislation. The position of the Government leaves us with no option but to pursue the motion here tonight and put this matter back to Special Committee in the hope that we can address these matters intellingently on second run.
Fianna Fáil have shifted ground in trying to pursue some of these amendments and for that reason must be roundly condemned in the House tonight. By way of example, when they sought to do down the most important provision to ensure that litigation in this area would be on the least controversial basis possible, they argued that the notion of irretrievable breakdown was not appropriate to this legislation but was more appropriate to divorce legislation. When we were discussing succession rights later in the Bill they insisted on an amendment that was totally inappropriate for this type of legislation and which was, as we all recognise clearly, much more appropriate to divorce legislation, an argument which they again sought to turn on its head. Their amendments have effectively transformed this legislation and emasculated it. They reintroduced controversy into the issues. They have done away with the right to succession. This will make the legislation unworkable as far as the vast majority of disadvantaged spouses, mainly women, are concerned. They have done down entirely any recognition of non-working spouses, that is, women in terms of their contribution to family income and family property.
We say that this motion must be supported. There can be no other way out of this. It must go back to Special Committee. It is hoped that the visit to that Special Committee will be a brief one and that Fianna Fáil will recognise that there is a majority view in this House that there is need for legislation, that it must be workable legislation and that all parties should be working towards a common end, trying to redress the unsatisfactory situation that has existed in this State since its foundation and since we failed to face up to the issue of divorce in the referendum in 1986.
The Divorce Action Group, the AIM group and the Family Lawyers Association, which includes practitioners employed by the Minister in the law centres, have pleaded that this matter be put back in committee, that we come to our senses and come back with a piece of workable legislation. It is not a big job that is being asked of us. Arguments have been well ventilated. It is time for Fianna Fáil to come to heel on this matter.
On a point of order, arising from Deputy Taylor's remarks, my understanding — and I would like you to confirm this — is that in accordance with the provisions of Standing Order No. 102, once a motion to the effect of the present motion is made, it must be put to the House. I would like briefly to make the point that I have indeed this afternoon taken steps to establish whether there might be agreement on this. So far, the response from the Government has been negative.
First, I want to say I believe that this motion is a sham and if it is carried it would do no credit to this House or its cherished procedures.
Why is it in Standing Orders then?
The motion has to do with the fact that the Fine Gael Party, not once, but four times over two days, failed to gain the support of this House in opposing my amendments to the Bill — and having failed, they want a replay to see if they can get those votes reversed.
You failed on Committee Stage.
If they did succeed in getting votes on each of the same amendments again, at what price would it be to the procedures of this House? The main issue involved is whether it is right that Standing Order No. 102 should be abused in this way.
Used.
The order provides that a motion may be made to recommit a Bill either wholly or in respect of certain sections or amendments and that the motion may be made at any time before the order for Fifth Stage shall have been made. Deputies who are familiar with procedure will accept that it is a device intended to be invoked by a sponsor of a Bill where, for example, a section which has been dealt with is subsequently discovered to require amendment because of some error or omission. That is clearly not the case here.
On a point of order——
Deputy Dukes may I advise you before you put any point of order that there is a very strict time limit to this debate. The spokesmen for the other parties were not interrupted in the course of their speeches and I would ask that the same courtesy be extended to the Minister in reply. It is wrong to erode the time of the speaker concluding.
He should be given injury time. I am quite prepared to do the Minister the courtesy of not interrupting him, but I want to know if it is in order for the Minister to claim that a Standing Order invoked by my party with your sanction, Sir, is being abused in this way.
Deputy Dukes and others should allow the Minister to conclude without any further interruption of any kind.
It is only an issue for the backbenches.
(Interruptions.)
Please Deputies.
That is clearly not the case here. The order should not be used as a means for overturning a series of votes in the House. Deputy Dukes over the weekend, and Deputy Shatter on a number of occasions, have accused me of attempting to sabotage the Bill by reintroducing fault into it, by bringing in proposals which would leave wives at the risk of destitution and by removing from the Bill a provision which would enable the court to give recognition to the contribution of a wife to the family finances. These accusations are blatantly untrue and the Deputies opposite must know that.
(Interruptions.)
Who are you trying to fool?
Under my amendments a decree of judicial separation can be obtained on proof on one or other of the following: adultery, desertion, unreasonable behaviour, separation for one year (with consent) or three years (without consent): nothing more needs to be proved.
You disinherit women.
Please, Deputies.
Separation includes the case where the spouses though living separate lives still live under the one roof. Under Deputy Shatter's proposals proof is required similarly of one or more of the following: adultery, desertion, unreasonable behaviour, family circumstances such that it would be reasonable for one spouse to live separate and apart, separation for one year (with consent) or three years (without consent). In addition, proof is required that the marriage has irretrievably broken down. It is clear from this that proof of fault is as much a part of Deputy Shatter's proposals as of mine. I did not, as has been claimed, introduce fault into the process. It is clear also that obtaining a decree under my proposals will be a less complicated procedure.
The grounds for a decree put forward by the previous Government when Deputy Dukes was Minister for Justice were the existing grounds of adultery, cruelty and unnatural practices and new grounds of desertion and separation. That Government rejected the need to prove irretrievable breakdown and also specifically rejected Deputy Shatter's grounds relating to family circumstances. It ill becomes the Leader of the main Opposition Party to contend that in bringing forward a proposal broadly similar to those sponsored by Deputy Dukes himself and in rejecting others which were also rejected on a previous occasion, by the Government of which he was a member. I am sabotaging the Bill or introducing fault into the process.
In a totally different context, when you were sitting on the fence——
Under Deputy Shatter's proposals the court was not required to inquire into the provision made for children unless the parties so desired. Because of my concern for the protection of children, I proposed that the court should be required to satisfy itself that adequate provision had been made for the children whether the parties wished so or not.
My proposal that inheritance rights no longer apply when a decree is granted must be judged in the context of my other proposals. These enable the court to transfer property between the spouses as well as to order that the wife may occupy the family home for life. They also provide for lump sum payments, maintenance and secured maintenance, which could continue after the death of the payer. The court is specifically empowered to compensate by suitable order for any loss of succession rights and, contrary to what Deputy Dukes says, to take account of any contribution by the wife to the family or any family business. The court is not limited to making these orders, only to the time the decree is granted.
My proposals are in line with the common practice under which separation agreements contain a clause providing for mutual renunciation of succession rights in return for other benefits. There is no question of a deserted spouse being left destitute, and there is no ground whatsoever for the outrageous suggestion, which was made in an article in The Irish Times yesterday, that my proposals involve the disinheritance of children.
Deputy Shatter's proposals on succession and financial provision orders were ill considered and would not have given the protection to dependent spouses that was claimed for them. In addition they would have produced the bizarre situation whereby a wife on benefiting from a property or lump sum order would normally lose her succession rights but her husband would normally retain his.
But there is some discretion in it.
However, I am aware that there is genuine concern about the automatic loss of succession rights that would result from my amendments. I doubt that there is any real basis for that concern in view of the powers that are being given to the court. However, I am prepared to consider proposing a further amendment, if necessary in the Seanad, whereby a spouse — it would usually be the wife — in a case of hardship, if the court had not up to the time of the death of her husband succeeded in making adequate and reasonable provision for her in all the circumstances, could make an application to court for provision out of the estate of her husband. Such provision would not exceed what her statutory succession rights might otherwise have been.
Why take them away at all?
In my view, and subject to further consideration, such a provision should allay any fears in this area.
Deputy Shatter has, since publication of the Bill, promoted the Bill in an irresponsible manner. I am glad to say that the House has succeeded in stripping the Bill of its pretence and inadequacy. Many of its provisions are unworkable because their consequences were, obviously, not thought through in the way that is necessary with all legislation. In other words, we found either that the Bill was inadequate or that what Deputy Shatter claimed in respect of it was unsustainable. The House has now considered and voted on the main features and it should not be asked to do so again.
With regard to the suggestion made by Deputy Taylor, that a decision should not be made for a period of a week or so, I am quite prepared to go along with it if the Fine Gael Party decide to withdraw their motion.
Question put.
The Dáil divided: Tá, 77; Níl, 76.
Tá
- Barnes, Monica.
- Barrett, Seán.
- Barry, Peter.
- Begley, Michael.
- Bell, Michael.
- Birmingham, George.
- Blaney, Neil Terence.
- Boland, John.
- Boylan, Andrew.
- Bruton, John.
- Burke, Liam.
- Carey, Donal.
- Doyle, Avril.
- Dukes, Alan.
- Durkan, Bernard.
- Enright, Thomas.
- Farrelly, John V.
- FitzGerald, Garret.
- Fitzpatrick, Tom.
- Flaherty, Mary.
- Flanagan, Charles.
- Gibbons, Martin Patrick.
- Gregory, Tony.
- Griffin, Brendan.
- Harney, Mary.
- Harte, Paddy.
- Hegarty, Paddy.
- Higgins, Jim.
- Higgins, Michael D.
- Howlin, Brendan.
- Kavanagh, Liam.
- Keating, Michael.
- Kemmy, Jim.
- Kennedy, Geraldine.
- Kenny, Enda.
- Lowry, Michael.
- McCartan, Pat.
- McCoy, John S.
- McDowell, Michael.
- Clohessy, Peadar.
- Colley, Anne.
- Connaughton, Paul.
- Cooney, Patrick Mark.
- Cosgrave, Michael Joe.
- Creed, Donal.
- Crotty, Kieran.
- Cullen, Martin.
- Deasy, Austin.
- Deenihan, Jimmy.
- De Rossa, Proinsias.
- Desmond, Barry.
- McGahon, Brendan.
- McGinley, Dinny.
- Mac Giolla, Tomás.
- Mitchell, Gay.
- Mitchell, Jim.
- Molloy, Robert.
- Naughten, Liam.
- Nealon, Ted.
- Noonan, Michael. (Limerick East).
- O'Brien, Fergus.
- O'Keeffe, Jim.
- O'Malley, Desmond J.
- O'Malley, Pat.
- O'Sullivan, Toddy.
- Pattison, Séamus.
- Quill, Máirín.
- Quinn, Ruairí.
- Shatter, Alan.
- Sheehan, P.J.
- Sherlock, Joe.
- Spring, Dick.
- Stagg, Emmet.
- Taylor, Mervyn.
- Taylor-Quinn, Madeleine.
- Wyse, Pearse.
- Yates, Ivan.
Níl
- Abbott, Henry.
- Ahern, Bertie.
- Ahern, Dermot.
- Ahern, Michael.
- Andrews, David.
- Aylward, Liam.
- Barrett, Michael.
- Brady, Gerard.
- Brady, Vincent.
- Brennan, Matthew.
- Brennan, Séamus.
- Browne, John.
- Burke, Ray.
- Byrne, Hugh.
- Calleary, Seán.
- Collins, Gerard.
- Conaghan, Hugh.
- Connolly, Ger.
- Coughlan, Mary T.
- Cowen, Brian.
- Daly, Brendan.
- Davern, Noel.
- Dempsey, Noel.
- Dennehy, John.
- de Valera, Síle.
- Doherty, Seán.
- Ellis, John.
- Fahey, Frank.
- Fahey, Jackie.
- Fitzgerald, Liam.
- Fitzpatrick, Dermot.
- Flood, Chris.
- Flynn, Pádraig.
- Foley, Denis.
- Stafford, John.
- Swift, Brian.
- Treacy, Noel.
- Tunney, Jim.
- Wallace, Dan.
- Gallagher, Denis.
- Gallagher, Pat the Cope.
- Geoghegan-Quinn, Máire.
- Hilliard, Colm Michael.
- Hyland, Liam.
- Jacob, Joe.
- Kirk, Séamus.
- Kitt, Michael P.
- Kitt, Tom.
- Lawlor, Liam.
- Leonard, Jimmy.
- Leyden, Terry.
- Lynch, Michael.
- Lyons, Denis.
- McCarthy, Seán.
- McCreevy, Charlie.
- MacSharry, Ray.
- Mooney, Mary.
- Morley, P.J.
- Moynihan, Donal.
- Nolan, M.J.
- Noonan, Michael J. (Limerick West).
- O'Dea, William Gerard.
- O'Donoghue, John.
- O'Hanlon, Rory.
- O'Keeffe, Batt.
- O'Keeffe, Ned.
- O'Kennedy, Michael.
- O'Leary, John.
- Power, Paddy.
- Reynolds, Albert.
- Roche, Dick.
- Smith, Michael.
- Walsh, Joe.
- Walsh, Seán.
- Woods, Michael.
- Wright, G.V.
Tellers: Tá, Deputies J. Higgins and Boylan; Níl, Deputies V. Brady and D. Ahern.
Question declared carried.
A very sound decision.
May I have the advice of the House as to how we should now proceed? We still have time remaining in Private Members' time; how shall we utilise it, if at all?
I understood it was agreed, should this vote be won tonight, that we would proceed with the Fine Gael motion on smog in my name and in the name of Deputy Shatter.
Is that the position?
Perhaps we should allow the Opposition time to recover from their victory.
Now that we have removed the political smog we should get down to getting rid of the smog in Dublin.