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Dáil Éireann debate -
Thursday, 23 Feb 1989

Vol. 387 No. 6

Judicial Separation and Family Law Reform Bill, 1987: Report and Final Stages.

I suggest that we discuss together amendments No. 1 in the name of Deputy Mervyn Taylor and No. 2 in the name of Deputy Anne Colley, with separate decisions if required. I am calling Deputy Mervyn Taylor on his amendment No. 1.

I move amendment No. 1:

In page 4, to delete lines 21 to 35, in page 5, to delete lines 1 to 48 and in page 6, to delete lines 1 to 10 and substitute the following:

"2.—(1) After the commencement of this Act the ground or grounds 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 one or more of the following facts, that is to say—

(a) that the respondent has behaved in such a way that the applicant cannot reasonably be expected to co-habit with the respondent;

(b) that the respondent has committed adultery;

(c) that the respondent has deserted the applicant for a continuous period of at least one year immediately preceding the presentation of the application;

(d) that the parties to the marriage have lived separate and apart from each other for a continuous period of at least one year immediately preceding the presentation of the application and the respondent consents to a decree of judicial separation being granted;

(e) that the parties to the marriage have lived separate and apart for a continuous period of three years immediately preceding the presentation of the application;

(f) 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 co-habit with the respondent;

(g) that the marriage has broken down irretrievably.

(2) If the court is satisfied on the evidence of any one or more of the facts as are mentioned in subsection (1) of this section, it shall grant a decree of judicial separation.

(3) For the purpose of subsection (1) (c) of this section desertion shall include conduct on the part of one party to the marriage that results in the other party, with just cause, leaving and living separate and apart from the other party.

(4) Provision shall be made by rules of court for the purpose of ensuring that where in pursuance of subsection (1) (d) of this section the applicant alleges that the respondent consents to a decree of judicial separation being granted, the respondent has been given such information as will enable him to understand the consequences to him of his consenting to a decree being granted and the steps which he must take to indicate that he consents to the grant of a decree.".

Now that we have reached Report Stage of this Bill I want to make clear in the first instance that what we are about here is trying to secure improvements in the Bill. The Labour Party are not opposing the Bill; we support the Bill but we want to try to improve the base on which a judicial separation can be granted by the courts and we also, in a later amendment, want to secure the opening up of accessibility to the new remedies that will be prescribed in this Bill.

Let me deal with amendment No. 1. The new agreement entered into by Deputy Shatter and the Minister which has resulted in the Bill coming forward in its present form has made a major difference to the grounds of application for a decree of judicial separation in that the original overall basis of irretrievable breakdown is now gone from the Bill and the new ground in clause 2 (1) (f) provides that the marriage must have broken down to the extent that the court is satisfied in all the circumstances that a normal marital relationship has not existed between the spouses for a period of at least one year immediately preceding the date of the application.

We are aware from the debates that have taken place over the various Stages of the Bill that at all times the Minister was totally opposed to the basis of irretrievable breakdown as the grounds on which an application could be made to the court and a judicial separation granted. The Minister gave as his reason for objecting to that that it was the ground used in English legislation as basing an application for divorce. In that the Minister is correct. In the English legislation the grounds for divorce are based on irretrievable breakdown of the marriage. The Minister objected to that, presumably because he did not want us to tie in here too closely with this notion of divorce.

We should put it on record, in the first instance, really as an aside, that when we are talking about judicial separation remedies to deal with marriage breakdown, in the view of the Labour Party, we are dealing with second best anyway and what the situation really requires is divorce legislation. I know we are not discussing that and that is not on offer at the moment. Nevertheless the point does have to be made that in our view it is divorce legislation that is required.

The concept of irretrievable breakdown as a basis for an application for judicial separation is radically different from the formula which now appears before the House, because the notion of irretrievable breakdown is critical to the concept of a no-fault application to the court and the court being in a position to grant a decree of judicial separation without having to get involved in the family mudslinging that might otherwise be expected when matters of this nature come before it. Indeed, Deputy Shatter himself was at pains to point out, throughout the long debate, that it was very important, that the whole concept of no fault was critical and should be maintained as the basis of the Bill.

How would an application to the court based on the notion of irretrievable breakdown work? It would work in the same way as the divorce legislation in England operates on an application to the English courts based on irretrievable breakdown. What happens in effect is that if one spouse goes into the court and tells the court that his marriage has irretrievably broken down then that is an end to the matter since that person is one of the two spouses involved, 50 per cent of the marriage. It takes two to tango and if one says the marriage is over, then it is over. It matters not at all that the other spouse will come in and say the marriage has not irretrievably broken down and is still going on. That would be of no avail because the marriage is not viable and cannot go on unless both spouses agree that the marriage is there. If one spouse says it has irretrievably broken down, under English divorce legislation that would be the end of the matter, and that would be the position here if our judicial separation were based on irretrievable breakdown, which is the more proper way to do it.

Deputy Shatter talked about this at the committee meeting on 20 April 1988 at column 60 when he said:

"Irretrievable breakdown" means that courts can grant a decree, having heard of the problems experienced within a marriage, on the basis that the marriage has broken down. The court decree as granted would state, that a judicial separation decree is granted due to the breakdown in the marriage or due to the marriage irretrievably breaking down. It will not state it is due to the cruelty or adultery of a particular spouse. It will not make any allegations against a husband or a wife.

He went on to say at column 61:

That provision in section 2 (1) (f), taken with the two preceding provisions in the Bill will, I believe, result in the region of 90 per cent of husbands and wives who have to resort to court to get decrees of separation getting decrees of separation without any findings of fault, without them having to cast stones at each other. It will enable them to separate in as civilised a way as is possible. It will enable them to do so, in the context of what the last speaker said, without having to prove fault. It will be great to see a no-fault concept. It should be stated that this is why this provision was recommended by the joint committee. It is, in fact, why it is supported by every voluntary and professional group outside the Houses working in the area of marital breakdown.

That would be the position if one was going to court with a case based on irretrievable breakdown of marriage but what would the position be if the spouses come into court with a case based on the new agreement that has been entered into between Deputy Shatter and the Minister? This clause provides that the marriage has broken down to the extent that the court is satisfied that in all the circumstances — these are the key words — a normal marital relationship has not existed between the parties for a period of at least one year. Let us look at how the courts would face the situation that would arise under that clause. As I see it, one spouse would come forward and say that a normal marital relationship had not existed with the other spouse for upwards of one year. The other spouse, who is determined to be vindictive and throw mud, will say that is not so and that a normal marital relationship has existed between them.

The court is then faced with an issue in that it has to decide which version is correct. Did these spouses have a normal marital relationship or not for the past year? To enable it to do that the court will have to examine the question first of what the marital relationship was for the past year. In other words what went on between this couple and what did the wife or husband do or not do? Every detail of that marital relationship and all the history of the marriage in the last year would be fair game for examination on evidence by the court. Before the court can determine whether a normal marital relationship has existed it must determine what marital relationship existed. Having done that it can then decide whether that relationship, which it has found existed, was normal.

Let us consider the difficulty the court will be faced with in deciding whether the marital relationship was normal. I do not know how the position will work out in reality. Can it be said that there is such a thing as a normal marital relationship? Will a court be able to decide that a relationship in a particular marriage is normal or otherwise? What would be very normal for one married couple might be completely abnormal for another married couple. I do not think a norm in the context of a marital relationship is something that will be addressed very easily by the courts.

It seems this will leave open the question of calling in expert witnesses such as psychiatrists. If one spouse is determined to make trouble for the other in opposing the application, by saying that what went on was normal or was not normal as the case may be, resort will have to be had to psychiatrists and psychologists, in like manner as resort is had to them in nullity applications which now go before the court. There are great costs involved in getting the opinions of psychiatrists and psychologists and bringing them to court. We hear a lot of criticisms about legal costs, solicitors' and barristers' costs, in conducting these cases but they pale into insignificance when compared with the costs charged by psychiatrists and psychologists in coming to court and giving evidence in cases of this nature. It seems all that will be opened up by this new formula that has been agreed by Deputy Shatter and the Minister.

It is also tied in with my next group of amendments dealing with the accessibility of the entire measure to people who do not have large amounts of money. If they cannot afford to bring an ordinary case with a simple formula before the courts how much less so are they going to be able to afford the costs of bringing in psychologists and psychiatrists to go into the question in expert terms of whether the relationship that existed was normal? The reality is that only the rich will be able to get the full value out of the kind of dispute and major litigation that this clause could open up.

I realise the political realities as well as anybody else. I fully realise the implications of the Tallaght strategy that is in operation here in this agreement that has been reached between the Minister and Deputy Shatter. I realise the voting implications of what is involved. The prospects of having this amendment accepted by the House, in terms of political reality, are non-existent. Nonetheless these are the thoughts that have occurred to me on this new amendment. It is regrettable that we have had to change the format of this crucial clause in the Bill to get past the difficulties raised by the Minister. It was not for this reason that we supported the recommital of the Bill to be re-examined in committee. I had hoped we would have been able to proceed with this section along the lines recommended by the joint committee so that the no fault basis which we all thought to be the kernel of the basis on which the application could be granted would still be available to spouses who needed to avail of it. Regrettably the new formula opens up the whole history of the marriage and leaves open the whole fault-based kind of application which we had sought to avoid in the original formulation and bringing forward of the Bill. Having said that, even in its amended form, the Bill will be a tremendous help if accessibility can be provided for. I will be saying more about that on the jurisdiction aspects of the matter.

I know on Report Stage we are being offered a last opportunity to consider this important Bill, the passing of which thousands of people around the country are awaiting. We have a real duty to those thousands of people to ensure that the Act that comes into being is as true as possible to the wishes of this House and its Members, as expressed at the various stages of the debate. It is also our duty to ensure that the courts' hands are not tied in the implementation of the Bill. Section 2 (1) (f) is not what it should be in order to avoid difficulties in implementing this Bill in the court. Before I address my own amendment I would like to say that I believe the general principle behind section 2, and particularly section 2 (1) (f), is laudable and one which I support. It is not the same as irretrievable breakdown but it goes a long way towards encompassing a no fault, or certainly an element of no fault ground, for the decree of separtion.

The difficulty I see — it is something akin to what Deputy Taylor has referred to — is that I believe it is open to a court to investigate the extent to which a marriage has broken down, the type of marriage that existed before that and the type of model marriage there might be, and to compare one with the other. Once we have started down that road, it is inevitable that the court will have to make judgments on the behaviour of one or other party and ascribe guilt. We have at various stages in the debate on this Bill referred to the mud-slinging syndrome. We wish to get away from that and one of the underlying principles of this Bill is that we should move away from declaring that one or other party has behaved worse than the other. My amendment, No. 2, seeks to tidy up the ground at section 2 (1) (f) for separation. This paragraph states that if: "the marriage has broken down to the extent that the court is satisfied in all the circumstances that a normal marital relationship has not existed for a period of at least one year", then a decree can be granted. I must repeat what I said on Committee Stage when the Bill was re-committed, that I believe section 2 (1) (f) is cumbersome. Paragraph (f) starts by stating: "that the marriage has broken down". Then there are a number of subclauses to the effect that the court is satisfied in all the circumstances that a normal marital relationship has not existed. First, it is clumsy and, secondly its intent is not clear. Is it that the court must be satisfied that a normal marital relationship, such as a model marital relationship, has not existed for a year or, is it that the court must be satisfied that the marital relationship which this couple had up to one year ago no longer existed and the court is then asked to decide that that previous relationship was the normal relationship and now it is not the normal relationship? This paragraph is not clear in its intent. It does not say there is a particular model type relationship which this couple is not living up to. Neither does it say that the couple's previous relationship was a normal relationship and, therefore, that is what we will measure it against.

It is unreasonable to ask a court to decide what a normal relationship is, in marriage, for any couple that comes before them. That is what this Bill seeks to move away from. In this clause we are attempting to establish a basis for a decree of separation which simply demands that one party to the marriage comes in and says: "The marriage has broken down and it simply does not exist".

When I moved my previous amendment on the recommittal stage the Minister, in referring to it, said he felt it would be difficult to accept my amendment because it included the phrase: "that the marriage did not exist". I can understand the difficulties that that might present because of the presumption that there was a void, and one cannot have that in legal terms. In redrafting that amendment I have sought to say to the Minister that I have addressed the problem he saw in my previous amendment but, nevertheless, I am keeping in principle to what the Bill demands; the ground is that marriage has broken down. I have used a phrase that is used in section 6 of this Bill.

Section 6 deals with the duty of a solicitor to give to the couple who apply for a separation the names and addresses of persons who might help in effecting a reconciliation, or names and addresses of persons who would mediate between the couple. In both of those cases section 6 refers to parties who have either become estranged or are estranged. The meaning of the word "estranged" is accepted. The court works on the basis of this understanding regularly. It does not present problems in interpretation because a marriage is still understood to exist but the couple themselves have become estranged. It is a far tighter approach to what we are trying to achieve here. It does not depend on uncertain and uneasy interpretations by the court of what is a normal marital relationship. It does not depend on comparisons between a previous relationship which the couple necessarily had. It simply asks if this couple are estranged, have they been estranged for a period of a year before the application and, as a result, is their marriage broken down?

It is incumbent on us to produce the kind of legislation that gives effect to what is behind the section. My amendment is closer to that than the amendment which has been agreed between the Minister and Deputy Shatter on behalf of the Fine Gael Party. I would ask both to give very serious consideration to this because I foresee real difficulties in the interpretation of section 2 (1) (f) as it stands.

It is within the principle that has been agreed between the Minister and the Fine Gael Party that the ground should be that the marriage has broken down and that the spouses have been estranged for a period of at least one year and, as stated in my amendment: "it is reasonable for the applicant to wish to live separate and apart...and to cease to be obliged to co-habit with the respondent". There is no uncertainty about that amendment. There is definitely uncertainty about the Bill as it stands, in section 2 (1) (f). I have pointed to the difficulty the court has in defining what a normal marital relationship is and as to whether it depends on the particular spouses in front of them or all spouses in general. The Bill, as it stands, obliges the court to investigate all the circumstances in a marriage because paragraph (f) states: "that the marriage has broken down to the extent the court is satisfied in all the circumstances that a normal marital relationship has not existed...". At the very least that would make applications under that paragraph cumbersome. It would oblige spouses to come in and say: "These are all the circumstances. Our relationship does not exist". As Deputy Taylor has said, the other spouse may contest that. We are entering into a very difficult and cumbersome situation, which is unnecessary, because there are a number of other grounds on which spouses can rely. As far as I understand it, this was intended to allow a couple to come to court without necessarily slinging mud at one another.

At the last meeting of the Special Committee, the Minister mentioned that he saw difficulties on one particular front, and I have sought to deal with that. I would be interested to hear his reaction to it. I feel it is a tighter and more workable interpretation of the principle behind this, and I strongly ask that both Fine Gael and the Minister consider it.

I am not a member of the Special Committee but nevertheless I have participated in a great deal of the legislation relating to this area in the normal working of the House over the years. I must confess that I was very taken aback when I saw the product of this enforced marriage between Deputy Shatter and the Minister for Justice, Deputy Collins. I had not envisaged that that flawed definiton would emerge. In some respects we would be better off if section 2 (1) (f) had not been foisted on us; it will provide a unique legislative interpretation of judicial case study writing in the nineties as this comes into play. Deputy Shatter and the Minister may find themselves the subject of considerable tracts of judicial irony in court. In the text books of the nineties, they will find themselves referred to as the Collins and Shatter precedent because I have never seen the phrase "normal marital relationship" in any legislation.

During the divorce referendum in particular, I remember spending many weary hours in Government and at departmental level debating definitions of this nature. This phrase is a legislative, consitutional nightmare. Deputy Colley and equally Deputy Taylor have quite rightly pointed out that the prospect of trying to have a judicial interpretation of a "normal marital relationship"— whatever that might mean — will cause appalling confusion. Parties to an action will face appalling problems in court and the judge will make heroic efforts trying to resolve an issue of that nature. In the fifties it was regarded as abnormal that a wife would go out for a drink with her husband, except perhaps at Christmas time or if she was lucky, perhaps on a Saturday night. One will find judges in this country who might regard it as being entirely abnormal for a wife to go out for a drink with a woman acquaintance four or five nights a week.

Where did you find that?

However, one might regard it as normal in a marriage that a man might spend four or five nights a week out boozing with his pals and coming home at 3 o'clock in the morning. Is that abnormal? Some judges might find that behaviour quite normal, while others might find it extraordinarily abnormal and would give a judicial interpretation accordingly. The phrase is fraught with multiple danger. Some judges are so abnormal they might even regard the non-presence of children in a marriage as not being a normal marriage.

Another spouse might discover that his dear wife had decided to take a contraceptive pill and he would plead before the judge that this was absolutely abnormal in marriage and in certain circumstances, if I know some judges, they would regard it as entirely abnormal that she had not advised her husband that she had taken a contraceptive pill. The case study will be infinite, and the confusion multiple if we foist this on the Irish people.

Frankly, I think we will have an interesting parliamentary process which will provide a good solid Ph. D. for a few American students visiting this country throughout the nineties into the year 2000. With due respects to Deputy Shatter, who has endeavoured to present this in a semi heroic manner as a resolution of the problem, I am surprised that as a practising member in the courts he would endeavour to give us an interpretation of this nature.

Where was the parliamentary draftsman when this was put before the Minister? I know no parliamentary draftsman who would dare touch it. I recall a parliamentary draftsman telling me, when I in my innocence came up with phraseology of this nature, to go away and buy a ball of wool and start unravelling it, because then I might begin to appreciate the nonsense I was proposing. When this phrase begins to be unravelled in court, its nonsense will become apparent.

The Deputy will agree that no blame should be attached to officials. The Minister is responsible.

I am trying to give a parliamentary exemption to the parliamentary draftsman for not having, I hope, put forward that phraseology because any self-respecting draftsman would run a mile from it. In fact, I wonder if the Minister brought it before the Government?

I trust the Deputy will not compound the reflection——

——I think what happened was the Minister told Deputy Shatter he was sick to death of this and he would put into the Bill whatever the Deputy wanted. Then it would be brought back to the House in the hope that it would slip through and both of them could claim credit for resolving a sorry episode. It would be interesting to hear the Minister's defence of the situation. I find it astounding, and I expected something better and I hope we will get something better.

It might be more appropriate to hear Deputy McCartan first and then the Minister.

I will be brief. First I want to talk about the enforced marriage between the Minister for Justice, Deputy Collins, and Deputy Shatter. If such an enforced marriage exists, I have to take responsibility for it because at the Special Committee, having hammered out long and hard over a period of months differences in the approach to the legislation, I proposed, that Deputy Shatter and the Minister, Deputy Collins, should sit down and borrow a number of weeks from the Committee's time to see if a compromise could be found. My recollection is that Deputy Taylor supported that approach as one that could produce results and help us put legislation quickly on the Statute Book. When Deputy Shatter and the Minister Deputy Collins, came back to the Special Committee with amendments in their joint names in an historic, almost unprecedented approach to legislation, The Workers' Party were happy to see that compromise had been achieved. That compromise signalled that the legislation would now progress rapidly not only in this House but in the Seanad, the Minister being happy that he had achieved a compromise and a workable piece of legislation. I will certainly not say anything today to detract from a process I suggested initially and which I welcomed at Special Committee.

The whole Bill is a compromise. We in The Workers' Party would prefer to be talking about divorce legislation. We failed to achieve that and we are now trying to meet the situation that exists in the absence of support for divorce being allowed in the Constitution initially and then in legislation. I accept that the wording now in the Bill is a compromise on that compromise. It was argued that the concept of irretrievable breakdown was the essential gene of the Bill and that we would work towards a no fault-non-controversial mode of judicial separation. We have a different wording now but we have to be honest about it and not suggest that irretrievable breakdown as a concept would have avoided all argument or all dispute in litigation of this kind. I never made that case in Special Committee and no one, including Deputy Taylor, should make that case now.

Deputy Taylor did not accurately represent the position in Britain. In Britain, if a person goes to court seeking divorce on the grounds of irretrievable breakdown, that is simply not the end of the matter. Notices must be served on the other party, and it is open to the other party to say that he does not believe the marriage has irretrievably broken down and that he does not want a divorce. There can be as much litigation on the concept of irretrievable breakdown as there would be on what is a normal marriage.

At the end of the day in drawing up legislation we have to resort to the ultimate decision of a judge in deciding. What is normal or abnormal, as Deputy Desmond said, will obviously and inevitably lead to a degree of judicial decision making. That will be varied as are all judicial decisions. If the concept of irretrievable breakdown, which I would prefer to have included, were included it too is as open to debate. The judges can agree or disagree on what has irretrievably broken down. Parties will be entitled to argue and litigate on it. Our preference is for the concept of irretrievable breakdown to be included in the Bill but it is quite obvious that it canoot be included given the conservative preponderence in the House and given the very bitter and deeply felt opposition to the concept being included in the Bill. Compromise was the only way out and we have a compromise that is acceptable to the two major political parties and for that reason it will succeed. We have to go with that concept.

We are legislators too.

I understood that in the Special Committee we all agreed to that procedure. There is a degree of opportunism in coming back in and suggesting that whilst the compromise is there, we should not stay with it and we should make the case that was very eloquently made by all Opposition contributors when we tried to support the concept of irretrievable breakdown. That was almost a year ago and the opportunity has now gone. We should now be getting this legislation on its way as quickly as possible. Whilst The Workers' Party would prefer to include irretrievable breakdown, we accept that it is not possible at this stage, so we will not vote against Deputy Taylor's amendment, but equally we will not support it because of what has taken place in the development of this legislation to date.

I opposed Deputy Taylor's amendment in Special Committee and I do so again. It would reintroduce into the Bill the concept of irretrievable breakdown and the family circumstances provision, section 2 (1) (f) of the original Bill. I made it clear that irretrievable breakdown was not only unsuitable but also unnecessary in separation proceedings. I am glad that the concept is no longer in the Bill. The Bill is all the better for it. The family circumstances provision has, in effect, been replaced by the more precise ground of breakdown in marriage, and in granting a decree on that basis the court must be satisfied in all the circumstances that a normal marriage relationship has not existed between the spouses for at least a year. I am satisfied that the Bill as it stands provides properly and fully for all the circumstances in which a judicial separation should be obtainable. There is no need for Deputy Taylor's amendment.

With regard to Deputy Colley's amendment, the phrase used in section 2 (1) (f) "normal marital relationship has not existed" will present no difficulties to the court. That is a phrase in common use in case law in the family law area. Once the court is satisfied that in all the circumstances a normal marital relationship has not existed for at least a year, it will grant a decree. The use of the phrase "in all the circumstances" constitutes an important safeguard in that it will ensure that only genuine breakdown cases will come before the courts. It will exclude cases where, for example, one spouse has to work away from home for long periods. I cannot accept Deputy Colley's amendment.

That about "estrangement", Minister? It is used in the Bill.

In response to the comments of various Deputies, I will first take Deputy Taylor's amendment. It has always been the objective of my party to secure a provision in this Bill whereby a couple who were still living under the same roof, who were incompatible and whose marriage had broken down could secure a separation decree without having to engage in acrimony and mud-slinging before the courts. I am satisfied that the formula which has been devised with the Minister contained in section 2 (1) (f) of the Bill which will enable a decree of separation to be granted where it is established that a marriage has broken down, will achieve that objective. I have no doubt that the Judiciary will be fully competent to deal with the concept in that subsection. I have no doubt that with a degree of common sense attached to the application of that provision many couples who currently are living a marital nightmare in family homes where communication has broken down, where normal interaction between husband and wife has long since collapsed, but where there is no violence or adultery, will, for the first time, be able to avail of a legal remedy to effect a separation decree.

It is regrettable that Deputy Taylor in approaching this Bill in the context of this provision should have throughout the course of our deliberations shown a degree of inconsistency, that at this stage can only be described as political schizophrenia. We have heard today from him that in effect, he would like the Bill reinstated in its original form. Deputy Taylor will have noted in quoting from the proceedings of the Committee that I had laid emphasis on the courts being able to grant a separation decree where it was established that a marriage had broken down. The essential reference there was to the establishment of marital breakdown and that is what paragraph (f) would allow. It is noteworthy that Deputy Taylor throughout our debate on the original Committee Stage constantly poured scorn on the concept of irretrievable marital breakdown as contained in the Bill when published.

I will not waste the time of the House by quoting a variety of extracts from contributions Deputy Taylor made. I will merely refer to one comment he made at column 37 of the report of the proceedings of the Special Committee on 23 March 1988. According to Deputy Taylor, the concept of irretrievable breakdown was an artificial concept and the Bill provided for artificial definitions. Deputy Taylor was all but critical of the original provision contained in the Bill as regards irretrievable breakdown of marriage. He tells us today, of course, that what he is now proposing is that we either reinstate the Bill to where it was, or we take up his new amendment which refers to the concept of irretrievable breakdown of marriage without trying to define what irretrievable breakdown of marriage is.

Under the Bill as it is now, established proof that a marriage has broken down will allow the courts to grant a decree. What about a couple who have not had normal communications or a relationship for a year or two and who come before a court under Deputy Taylor's proposal? The judge would say: "I accept that you have not got on for a couple of years and your marriage has clearly broken down, but I do not believe it is irretrievable. I believe that in a couple of years time you will both get on again and I am not going to grant a decree". The amendment Deputy Taylor is now proposing is even more restrictive, or a great deal more uncertain, which is a fairer phrase to use, in the context of proposals made at various stages during the course of our deliberations as to the grounds for separation than other provisions may have been as to its judicial application. At all stages we have been anxious to ensure that there is some guidance to the Judiciary as to how they can determine whether a decree should be granted where a marriage has collapsed. The provision we have included in this Bill clearly sets out that guidance.

Deputy Taylor referred to the fact that the Labour Party had been supportive of the Bill. Indeed, I have been very grateful throughout the deliberations in this House and the Special Committee for the support which has been given by all parties on the Opposition benches and I am pleased that the difficulties between us and the Government party have been resolved, but I would have to say that on occasions the approach of the Labour Party has been extraordinarily puzzling. I have already referred to Deputy Taylor's approach to the concept of irretrievable breakdown of marriage on which he poured some scorn at some considerable length during the original debates on Committee Stage. On 29 November, when a motion was tabled to recommit this Bill, Deputy Taylor had all sorts of reservations about recommittal. I want to quote from Deputy Taylor's contribution in the Official Report of 29 November 1988 — and I want to remind the House that at an earlier stage he had thought the way irretrievable breakdown of marriage was dealt with in the Bill was not appropriate — where he said: "... legislation is urgently needed in this area. Every one of us knows of people who are suffering and who would find relief from the passage of this Bill with all its faults", in other words, with the faults contained in the Bill which we have remedied by the amendments made to the Bill and which have been agreed on all sides. He went on to say:

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.

At that stage of the debate on the motion to recommit in the context of our dealing with the problems which are dealt with in this section, of the grounds upon which a separation can be granted, Deputy Taylor was anxious not to recommit the Bill. He said that the Bill would be buried for months and even if it was not and came back on Report Stage we all knew what might befall it in the Seanad. By implication, Deputy Taylor meant that the Government in the Seanad might, no matter what the Dáil ultimately decided, dismantle the Bill in some way and reinsert all the faults it was generally acknowledged were contained in it at that stage due to the Government's amendments. Deputy Taylor went on to say:

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.... In the course of the next week there will be a time for all parties to sit down and endeavour to reach common ground about the issues that divide us.

All parties.

There was some confusion in the ranks of the Labour Party on the night of the motion to recommit as to whether they would vote, abstain or whatever.

(Interruptions.)

They finally voted with us and, of course, Deputy Desmond knows I am now touching a very raw nerve as to what the Labour Party had in mind and were up to on that night. He knows I am scratching at the surface of something he might feel uncomfortable with if I go much further.

I am perplexed, to say the least of it.

I ask the Deputy not to continue in that vein.

Now that we have reached agreement, and Deputy Taylor has been proved wrong about the Bill being buried and we have resolved many of the difficulties people on different sides of the House had with the provisions of the Bill, it is worth recording that save for the carping attitude of the Labour Party the agreement which has been reached — and in particular the agreement as to this ground we are talking about being included in all the other grounds on which a separation decree can be granted — has also been widely welcomed outside this House. Some colleagues of Deputy Taylor are somewhat confused as to why he has adopted this approach.

Some of the Deputy's colleagues are confused about his response as well.

I do not want to go on at too great a length other than to say that I am satisfied that the agreement which has been reached, and this provision in the Bill, will fully resolve the difficulties of ensuring that couples whose marriages have broken down, who are living under the one roof and who seek a separation decree will be able to get one without having to engage in mud-slinging and without having to exacerbate the marital difficulties which exist between them. I do not envisage troops of psychiatrists being brought into court on a separation application such as Deputy Taylor suggests. The true insight into Deputy Taylor's attitude and approach to this was evident by his offhand remark about the Tallaght strategy. It is unfortunate that Deputy Taylor, having urged everyone not to make the Bill a political football, sought in the past couple of weeks to kick it around as if it is some sort of political football, to his benefit.

The marital allusion is quite appropriate.

Of course, Deputy Desmond's contribution in this House on any legislation is always of some interest. He engaged in a number of speculative ramblings which were so remote from the reality of the way the Judiciary would apply this Bill as to be generally unworthy of any response.

(Interruptions.)

Acting Chairman

I ask the Deputy speaking not to invite interruptions.

Deputy Desmond's contributions on the interpretation of Bills would merit comparison with the capacity of Deputy Desmond when Minister for Health to produce a Bill on child care legislation which was so flawed and fraught with legal inadequacies that the Bill was buried for two years and could not be enacted during the period he was Minister for Health.

That is a load of nonsense.

Deputy Desmond is well aware of that.

It was a better Bill than the one before us now.

Deputy Desmond's ability to understand how to produce legislation—

Acting Chairman

We are not discussing that Health Bill now and I ask the Deputy to keep to the Bill before the House.

——which deals with matters related to marriage breakdown and the family law area leaves a great many questions to be answered.

I want to thank both Deputy Colley and Deputy McCartan for their support and their constructive contributions at all times to the debate on each and every section of the Bill as it was being teased out. I very much understand the case that Deputy Colley is making in the context of her amendment. As with any new legislation, there are always valid areas for debate and discussion as to exactly how the Judiciary will interpret a particular provision. I am satisfied, as is the Minister, that the Judiciary would have no difficulty in applying section 2 (1) (f) to enable separation to be granted to couples who are estranged, as Deputy Colley so properly puts it, for at least one year and one or other wishes to separate and the court is satisfied that that is reasonable. I suggest to Deputy Colley that the form of wording that she has used in the proposed amendment to paragraph (f) is to exactly the same effect as the form of wording now in the Bill. Just as one might want to tease out the meaning of a normal marital relationship not existing, equally the courts would tease out what is meant by the concept of an estranged couple. When are they actually estranged? At what stage does the relationship break down to the extent that it is estranged? I would suggest that a court being asked to do that would in effect look at whether a normal marriage relationship existed between the couple at the time.

It relates to that relationship rather than the model relationship.

Yes. In that context what the court is doing is seeing whether a normal marriage relationship existed between the spouses, as the provision says, before the court. It does not set up a role model by which husbands and wives will be judged. I very much appreciate Deputy Colley's comments on this provision. I suggest to her that as the Bill will now enable the court to grant a separation decree where a marriage has broken down — as her provision would also do — there is no real difference between us in the context of the various amendments that have been tabled. It is largely a matter of semantics. It is my belief that the provison we now have in the Bill will fully, properly and adequately deal with all situations that need to be resolved.

I thank Deputy McCartan for his helpful remarks. He is correct in saying that we started off by trying to provide irretrievable breakdown as the overall ground for granting a separation decree. The Fine Gael Party believed that to be the correct approach and that approach was adopted by the Oireachtas joint committee after two years of deliberation. We are also satisfied that the concept of marital breakdown as provided for in this section as it now stands will adequately meet all the situations that we were concerned to meet in the Bill as originally drafted. I would hope that because of that it would be supported by all Members of this House.

Deputy Taylor and Deputy McCartan referred to the desirability or not of divorce. That is a separate issue. This is a Bill dealing with judicial separation. It does not and cannot deal with divorce. Divorce is a matter that the people at some stage may have to confront by way of referendum. A referendum was held in 1986 on that issue. This House cannot legislate in that area.

I refer now to something that Deputy Taylor said on recommiting the Bill. I would hope that the amendments that have now been made to the Bill as agreed will be seen as a package designed to ensure that this legislation is enacted as rapidly a possible, to meet the urgent need in this area to which Deputy Taylor referred. I would point out to Deputy Taylor that we have managed to reach an accommodation which I believe deals with all the issues that required to be dealt with in a way that will vastly improve and overhaul our law and to some extent revolutionise family law. As Deputy Taylor accepted, it will provide legislation that is necessary as we enter into the 21st century.

It is worth bringing to his attention that we have now reached the stage when there will be no difficulty with the Bill in the Seanad. The fate that Deputy Taylor was concerned might befall the Bill in the Seanad will now not befall it because, as the Minister stated, it is agreed that the measure before the House, in the context of issues about which there has been controversy will not be in any way attacked by any of the major groupings within the Seanad. What we now have is a Bill that the Minister and we have publicly stated will rapidly pass into law and become part of our statutory legislation before the summer recess.

I would like to reply briefly to some of the comments made. Having listened carefully to what Deputy Shatter had to say I believe he has not at all addressed himself to the comments that I made regarding the section 2 (1) (f) clause which is the kernel of the agreement which he reached with the Minister. His remarks on that issue seemed largely to be confined to such statements as that he was quite satisfied with it. He said that twice or three times. He said that in his opinion it would fully and adequately deal with all situations that might arise under it. That kind of statement, even backed by his undoubted knowledge of the subject, cannot be regarded as a substitute for reasoned argument as to the actual wording of the clause that we are faced with.

It is true that on the motion to recommit on behalf of the Labour Party I expressed reservations. Those reservations were well taken and, it is fair to say, have been borne out by events. While it is true that the delays I feared have not materialised, one wonders as to the reason for that. I think the secret emerges from one word which Deputy Shatter used in his reply, that what we are faced with here is a package. Let us be honest about it. A package is fine; a compromise is fine. Undoubtedly, the Minister conceded on some of the important matters at issue in the debates between Fianna Fáil and everbody else, particularly when dealing with property rights and so forth. He certainly did not concede on this issue. On this issue, I am afraid, we are left in a position — and I am sure Deputy Shatter well knows this — that is in line with the Minister's wishes so far as grounds for separation are concerned, rather than the wishes originally espoused by Deputy Shatter and all the other parties who supported him on this Bill.

He said that I described the definition of irretrievable breakdown in the course of the earlier debates as artificial. That is true. What he does not point out is that I was referring to the original format of his Bill which as drawn gave an artificial definition of the expression "irretrievable breakdown". Deputies will recall that it provided that the sole ground for separation — this is the original Bill as initiated — was irretrievable breakdown. It then went on to give an artificial definition to that, that irretrievable breakdown would be established by proving one or more of a number of grounds. A careful look at my amendment will show that I have gone away from that artificiality and I put in the expression "irretrievable breakdown" in its own right as a separate ground without giving it its original artificial definition.

Deputy Shatter adopted a lofty and superior position when he talked about the carping of the Labour Party. There is more to the Oireachtas than Fianna Fáil and Fine Gael. I know they are both big and important parties and perhaps nobody is more aware of their importance than each of them. However, there are others — admittedly smaller parties — who feel they have a contribution to make, a position to represent and a role to play. In our own small way we try to make that contribution as best we can. Very often our numbers are not respected in the way they should be but we try. A package is fine but that does not mean that we do not have a duty to highlight the downside aspects of that package. The Labour Party and I believe that section 2 is one of the downsides and nothing that has been said by the Minister or Deputy Shatter has in any way elucidated the realities of what spouses will face in seeking separation under section 2 (1) (f). I have discussed the matter with many colleagues who practise in the family law area and they share my fear that it leaves the matter as a fault-based application. That is why we tabled this amendment and if it is accepted it will constitute a substantial improvement on this aspect of the Bill.

Amendment put.
The Dáil divided: Tá, 11; Níl, 107.

  • Bell, Michael.
  • Desmond, Barry.
  • Higgins, Michael D.
  • Howlin, Brendan.
  • Kavanagh, Liam.
  • Kemmy, Jim.
  • O'Sullivan, Toddy.
  • Quinn, Ruairí.
  • Spring, Dick.
  • Stagg, Emmet.
  • Taylor, Mervyn.

Níl

  • Abbott, Henry.
  • Ahern, Bertie.
  • Ahern, Dermot.
  • Ahern, Michael.
  • Aylward, Liam.
  • Barrett, Michael.
  • Barrett, Seán.
  • Begley, Michael.
  • Birmingham, George.
  • Boland, John.
  • Boylan, Andrew.
  • Brady, Gerard.
  • Brady, Vincent.
  • Brennan, Matthew.
  • Brennan, Séamus.
  • Browne, John.
  • Bruton, John.
  • Bruton, Richard.
  • Burke, Liam.
  • Burke, Ray.
  • Byrne, Hugh.
  • Carey, Donal.
  • Collins, Gerard.
  • Conaghan, Hugh.
  • Connolly, Ger.
  • Cooney, Patrick Mark.
  • Cosgrave, Michael Joe.
  • Coughlan, Mary T.
  • Cowen, Brian.
  • Creed, Donal.
  • Crowley, Frank.
  • Daly, Brendan.
  • Davern, Noel.
  • Deasy, Austin.
  • Deenihan, Jimmy.
  • Dempsey, Noel.
  • Dennehy, John.
  • de Valera, Síle.
  • Doherty, Seán.
  • Dukes, Alan.
  • Durkan, Bernard.
  • Ellis, John.
  • Enright, Thomas.
  • Fahey, Frank.
  • Fahey, Jackie.
  • Farrelly, John V.
  • FitzGerald, Garret.
  • Fitzgerald, Liam.
  • O'Rourke, Mary.
  • Power, Paddy.
  • Reynolds, Albert.
  • Roche, Dick.
  • Shatter, Alan.
  • Sheehan, P.J.
  • Fitzpatrick, Dermot.
  • Flaherty, Mary.
  • Flanagan, Charles.
  • Flood, Chris.
  • Flynn, Pádraig.
  • Foley, Denis.
  • Gallagher, Denis.
  • Geoghegan-Quinn, Máire.
  • Griffin, Brendan.
  • Harte, Paddy.
  • Haughey, Charles J.
  • Hegarty, Paddy.
  • Higgins, Jim.
  • Hilliard, Colm Michael.
  • Hussey, Gemma.
  • Hyland, Liam.
  • Jacob, Joe.
  • Kelly, John.
  • Kirk, Séamus.
  • Kitt, Tom.
  • Lawlor, Liam.
  • Lenihan, Brian.
  • Leonard, Jimmy.
  • Lowry, Michael.
  • Lynch, Michael.
  • Lyons, Denis.
  • McCarthy, Seán.
  • McGahon, Brendan.
  • McGinley, Dinny.
  • Mitchell, Jim.
  • Mooney, Mary.
  • Morley, P.J.
  • Moynihan, Donal.
  • Nealon, Ted.
  • Nolan M.J.
  • Noonan, Michael.
  • (Limerick East).
  • Noonan, Michael J.
  • (Limerick West).
  • O'Brien, Fergus.
  • O'Dea, William Gerard.
  • O'Donoghue, John.
  • O'Hanlon, Rory.
  • O'Keeffe, Batt.
  • O'Keeffe, Jim.
  • O'Keeffe, Ned.
  • O'Kennedy, Michael.
  • O'Leary, John.
  • Smith, Michael.
  • Swift, Brian.
  • Taylor-Quinn, Madeleine.
  • Wallace, Dan.
  • Walsh, Joe.
  • Walsh, Seán.
  • Woods, Michael.
Tellers: Tá, Deputies Howlin and Quinn; Níl, Deputies V. Brady and J. Higgins.
Amendment declared lost.

Amendment No. 2 in the name of Deputy Anne Colley was discussed with amendment No. 1 that we have just disposed of.

I move amendment No. 2:

In page 5, to delete lines 7 to 11, and substitute the following:

"(f) that the marriage has broken down and the spouses have been estranged for a period of at least one year immediately preceding the date of the application, and the Court is satisfied that it is reasonable for the applicant to wish to live separate and apart from the respondent and to cease to be obliged to co-habit with the respondent.".

Amendment put and declared lost.

We now come to amendment No. 3 in the name of Deputy Mervyn Taylor and here we have amendments Nos. 4, 5, 6, 7 and 8 which, in my opinion, form a composite proposal. Therefore, I suggest we debate these amendments together with separate decisions if required. Is that agreed?

Agreed. I move amendment No. 3:

In page 19, to delete lines 9 to 34, and substitute the following:

"31.—(1) Subject to subsection (2), the Circuit Court and the District Court shall have jurisdiction to hear and determine proceedings under this Act and to make any of the orders referred to in sections 14, 15, 16 or 18 as ancillary orders, and in so doing shall be referred to as the Circuit Family Court and District Family court respectively.

(2) In the exercise of its jurisdiction under this Act, the District Court shall not make an order—

(a) under section 14 (1) (a) or (b) or section 16 (g), for the payment of a periodical sum at a rate greater than £110 per week in respect of the maintenance of a spouse or £35 per week for the maintenance of each dependent child of the family,

(b) under section 14 (1) (c) or (d), for the payment of a lump sum or sums exceeding in total £8,500 for the benefit of a spouse or £2,500 for the benefit of each dependent child of the family.

(c) under section 15 (a) or (b), for the transfer or settlement of property exceeding £25,000 in value,

(d) under section 16 (a), (c), (d), or (f) or section 18 where the value of the personal property (other than chattels real) exceeds £25,000 or the rateable valuation of the lands exceeds £35.

(3) The jurisdiction herein conferred may be exercised—

(a) as regards the Circuit Court, by the judge of the circuit, and

(b) as regards the District Court, by the justice of the District Court for the time being assigned to the district,

where either party to the proceedings ordinarily resides or carries on a profession, business or occupation.

(4) The jurisdiction conferred on the Circuit Court to hear and determine proceedings instituted under the Married Women's Status Act, 1957, the Guardianship of Infants Act, 1964, the Family Law (Maintenance of Spouses and Children) Act, 1976, the Family Home Protection Act, 1976, and Family Law Act, 1981, the Family Law (Protection of Spouses and Children) Act, 1981, the Status of Children Act, 1987, the Legitimacy Declaration Act (Ireland), 1868, and proceedings between spouses under the Partition Acts 1868 to 1876 shall be exercised by the Circuit Court.

(5) The jurisdiction conferred on the District Court to hear and determine proceedings instituted under the Guardianship of Infants Act, 1964, the Family Law (Maintenance of Spouses and Children) Act, 1976, the Family Home Protection Act, 1976, the Family Law Act, 1981, the Family Law (Protection of Spouses and Children) Act, 1981, and the Status of Children Act, 1987, shall be exercised by the District Family Court.".

The purpose of amendment No. 3 and the other amendments is to give jurisdiction within certain defined limits, as in the amendments, to the District Court as well as the jurisdiction already provided for in the Bill as it is before the House in the Circuit Court. The reason we seek to give a limited jurisdiction in certain cases to the District Court is to open up the accessibility to the new remedies now being provided for in this Bill to people who otherwise would not be able to have access to them. Our fear is that in the absence of the giving of such a jurisdiction to the District Court this measure will turn out to be available and open only to the rich and only those who will be in a position to afford the very high and substantial legal costs that would be necessary to get into the Circuit Court. The costs of a Circuit Court action run on anything from £1,000 or £1,500 plus, covering the cost of solicitors, barristers, VAT, consultants' fees, stamps on documents and so on, and the procedure in the higher Circuit Court is more complex, involving more pleadings and more expense than would be the case of proceedings in the District Court.

The Bill is providing new remedies. That is an excellent measure. That is progress. However, I have to raise the question here, what will it benefit the overwhelming bulk of the people who need to avail of these remedies if they cannot get into court to avail of them? As I put it to the Minister when we were discussing this matter in the Special Committee, he should do a number of things. He should tell us he will give a guarantee to the House that he will provide substantial additional funds that would be necessary to the Legal Aid Board so that they could provide a legal service for people who would need to avail of the new remedies being provided in this Bill. If the Minister assures the House that he is prepared to provide those funds so that people who need to get a judicial separation under this Bill, and who have not the money to do so, will be able to get legal aid for the purpose, that would be fine. If he gives that undertaking to the House I will withdraw these amendments. However, the Minister gave no such commitment in the Committee and I do not suppose he is going to give it here either.

In a TV interview after the Committee the Minister stated that this was a separate matter and he, the Minister, in due course would try to get the additional funds needed by the Legal Aid Board. It is not a separate matter: it is a connective matter and very much a connective matter. We do not want to have under this Bill what applies, unfortunately, to so many other aspects of access to the law, that access to this Bill remains open to all, just like the Ritz Hotel. In other words, those who have the £1,500 up front for the lawyers, psychiatrists and psychologists can go and get the separation and those who cannot are left outside and cannot avail of the Bill. What are they to do? It is no good telling a person in that position that there is an excellent new Act there with excellent new remedies for the courts, the person's marriage situation can now be resolved through the courts, there are marvellous provisions about arbitration and negotiation to resolve marital disputes and there are ancillary orders the courts can make and that all these new remedies are there. What good is that to the person who has not the money to have access to them or who on going to the Legal Aid Board finds they are not in the position to provide him or her with the facilities? What do we say to that person?

I instanced a case in the Committee and I will do it again here to bring the matter down to reality. The Minister goes into his clinic in Limerick and finds a spouse there waiting to see him who says to him: "Minister, I need a judicial separation urgently but I do not have money. What can I do? How can I avail of this new remedy in the new Judicial Separation Bill? Where do I go?" I do not know what the Minister is going to give as his answer to that. I wish he would tell us. It is not just the Minister. Each of us in our clinics doing our political work will be faced with that. I am waiting to hear answers on this and the answers I am getting are that there are all sorts of new remedies, you can do this or that and the Bill provides this, that and the other, but the nub question still remains. How do they get into court if they have not got the £1,500 for the Circuit Court and if the doors of the Legal Aid Board centres are closed to them? What are the Legal Aid Board themselves saying on the question? The annual report of the Legal Aid Board for 1986 deals with the failure to meet demand and states at paragraph 3.1:

It is a matter of regret to the Board that it is obliged, once again, in an Annual Report to headline the fact that, although thousands of people have been provided with legal aid and advice services since its last Report was published, it can still go nowhere near meeting public demand for these services.

Paragraph 3.2 states:

The principal piece of hard evidence of the inadequacy of the service is the fact that several Law Centres, especially over the past 12 months, have had to close their doors to new work for months on end.

The heading "Opening of New Law Centres Shelved" tells its own story.

Paragraph 8.1 of the report states:

The final paragraph of the Board's last Report stated that:—

"The recently-announced intention of the Minister for Justice to reform family law is most welcome — and the Board has been glad to provide suggestions in this regard. The Board has to make the point, however, that reform of family law will, unfortunately, not be of very much benefit or relevance to a great many people unless, at the same time, a serious commitment is made to provide adequate staff and adequate funds for the expansion of the legal aid service. Unless the necessary resources are provided, the Board will be unable to make equal and effective access to legal services available to those who need them."

Paragraph 8.2 states:

The central point — that law reform, especially family law reform, has an impact on legal aid — needs to be emphasised again. If the reforms of family law currently before the Oireachtas are enacted, there is no doubt that many people — perhaps thousands — will seek legal aid to avail themselves of the new provisions; and there is no doubt either that, without additional resources, the Board will be unable to meet their needs. There is already a queue for legal services; the anticipated demand likely to be produced by the proposed legislation will lengthen this queue to an extent that will make its anticipated advantages illusory for a great many people.

The Minister indicated on television that he will try to obtain some additional resources for the Legal Aid Board. I wish him luck and I do not doubt his bona fides. What is the reality? The provision in the 1989 Estimates for the Legal Aid Board represents a further cut in the allocation to this service, on top of the cut in 1988. The situation is getting worse, not better. We know the Fianna Fáil record of cutbacks in every facet of life and we know that the Minister, notwithstanding his efforts, will not get the money needed to provide a proper legal aid service. The Legal Aid Board will not be able to meet the needs of people who cannot afford to pay to avail of the remedies in this Bill. The Minister should not tell us that the person in his advice clinic in Limerick can be sent to the Legal Aid Board. Those doors are closed. I am assuming there is a law centre in Limerick, although in many parts of the country there are no such centres.

Let us provide a jurisdiction for the District Court so that when the Bill is passed a person who needs a separation or one of the other remedies provided for in the Bill but who has not a penny will be able to go the family law office in the District Court and obtain the help of the clerks, who give such magnificent help to the people who seek their assistance. I pay tribute to those District Court clerks who voluntarily fill in forms and summonses for people making barring, maintenance or custody applications. There is no charge for this service and it is possible to get a case into the District Court without any legal cost.

People in the Legal Aid Board tell me that sometimes those who seek their help cannot even afford the £15 subscription charge, never mind the £1,500 costs of a Circuit Court action. Solicitors will practise on their own without barristers in the District Court, which is the court in which they normally practise. For a small or modest fee there should be no difficulty in getting a solicitor to conduct a separation case and obtain some of the ancillary orders available under the Bill. If the solicitor's modest fee cannot be provided for, it can be arranged through the District Court clerks for no fee at all.

The point is sometimes made that it would be inappropriate for the District Court to have this jurisdiction and that district justices might not be able to cope with this legislation. Some district justices do strange things on occasion. Some Circuit Court and High Court judges also do some strange things on occasion. It is by no means unusual to have the Circuit Court overruled by the High Court and the High Court overruled by the Supreme Court. Whether it is ideal or not, what we are proposing will provide a remedy to people which they otherwise will not have. The district justices who work in the family law courts have great experience, from my personal knowledge of such cases. They already deal with a wide range of family law matters, including barring applications, maintenance and custody applications. They are no strangers to the area of family law.

Deputies from all parties come to me privately and say there is a great deal of merit in the proposition to give the District Court this jurisdiction, but they are obliged to obey the Whips. Some Deputies have said that they privately support the idea but that for political reasons they cannot vote in favour of it. I welcome the fact that another legal remedy will be brought to the Statute Book but I cannot understand why we cannot provide that it is open for all, not just to the select wealthy few who will be able to avail of it. The irony of it is that those select, wealthy few hardly need the provision at all. What are those who can afford to pay doing? We know what they are doing. Most of them are not bothering with judicial separation at all. They are getting divorces in the United Kingdom through divorce lawyers over there, using the irretrievable breakdown procedures with no problem at all. Those who have the money get their divorces in England. That is the reality. Those people who will need to avail of the new remedies here are those people who cannot afford them. Unless we provide the District Court jurisdiction for them they will not be able to avail of these new remedies. That is the harsh reality here.

I thank the Minister for his efforts to get more money for the Legal Aid Board. I wish him luck but I know full well, and I think he knows himself, that in the present economic climate, bearing in mind the policies of this Government, it is just not on; it is just not going to be.

I want to know what I am to tell the unfortunate woman whose marriage has broken down, who is experiencing desperate conditions, in my clinic. What is the Minister to tell such a person in his clinic in Limerick? I do not know that the answer is but it is indefensible. In the absence of a commitment on the part of the Minister to give us the money for the Legal Aid Board, he should at least open up the jurisdiction to the District Court so that the remedies will be open to all our people not just the select few.

The Minister has asked that he be allowed make a point.

I am still opposed to this amendment for the several reasons I explained in the course of our deliberations in Special Committee. While I have sympathy with its purpose, unfortunately there are difficulties which do not appear capable of resolution. While perhaps a case could be made, because of the extensive family law jurisdiction the District Court already possesses, that the granting of a decree should be dealt with by that court, few cases will be as simple or straightforward as that. Very often the main reason for coming to court will be the resolution of disputes about other matters, including property matters. I do not think the District Court should have jurisdiction over the division of property, including the division of the family home. At present the District Court has no jurisdiction in equitable matters of this nature.

Furthermore, under the provisions of section 17, as they stand now, the court is empowered — on granting a decree of judicial separation — to consider whether it should make an order extinguishing the succession rights of either spouse. The High Court and the Circuit Court, but not the District Court, at present have jurisdiction in relation to matters under the Succession Act, 1965. I do not think it would be appropriate to depart from that principle under the provisions of this Bill. In addition, the present monetary jurisdiction of the District Court does not exceed £2,500. I would be opposed to any increase in that limit other than by way of a general review of the jurisdiction of the District Court which would involve inevitably a review of the Circuit Court's jurisdiction also.

The purpose of this amendment arises from the belief that the Legal Aid Board, who administer the scheme of civil legal aid and advice, will not be in a position to deal with the demand for the remedies provided in the Bill. Indeed the board themselves in their 1986 report said that without additional resources they would be unable to meet this demand and predicted that the queue for legal services would lengthen. The board are already dealing with a large increase in the number of people requiring services in connection with judicial separation in the Circuit Court. That is evident from the board's reports of 1985 and 1986. I have no doubt that that position has obtained right through to this year. Of course, that demand will increase further as a result of the provisions of the Bill. However, to some extent, this is likely to involve a switch in the already existing demand for remedies in the District Court — proceedings for barring orders, maintenance and custody in excess, which constitute the highest proportion of legal aid cases — to demand for judicial separation and ancillary remedies in the Circuit Court.

I am not endeavouring to contend that there will be no overall impact on the demand for services under the civil legal aid scheme but this aspect needs to be put in context. It would be wrong to assume that legal services under the scheme will not be available to people who wish to avail of the provisions of this Bill and who are eligible for services under the scheme. If the pressure for sevices increases it is likely that further delays will arise at some law centres in taking on new clients. It may be that some judicial separation cases will not fall within the category of emergency cases; some delay should be tolerated in such cases. It is well to bear in mind that, even in the case of private solicitor's services, clients may have to wait for appointments.

With regard to the difficulties encountered by the Legal Aid Board in coping with demand for their services, I should say that those difficulties are related to the availability of resources and the related question of the present restrictions on public expenditure and staffing. I have already informed the House that I am keeping the position about the provision of legal services under the scheme under review and that if anything can be done within the constraints of present Government policy, it will be done.

The effect of the remedies provided in the Bill, in putting extra pressure on the board, will be closely monitored. If the circumstances warrant remedial action I will be the first to make the case for extra resources for the board.

This is an issue of fundamental importance in respect of which I support the Labour Party amendment. Indeed I have consistently done so throughout our deliberation on this Bill. By way of clarifying the position I should say that this amendment was not locked in the major inter-party strife that marked our deliberations on the previous one. This is not one on which I feel I should hold fire, this being the last stage of our deliberations in this House.

On every occasion on which we have debated the provisions of this Bill I made the fundamental case that I believe the district courts are the most important courts administering law in this country, being the most easily accessible and most democratic. I repeat that view again today. Indeed that view has been taken on board by many Members in response to points made by Deputy Taylor and me, as an indication of the taking of a position on some ideological grounds. I fail to understand that interpretation. However, if my description of the district courts as the most democratic is taken to express an ideological view, then so be it. I believe it is the fundamental principle or base from which we should embark on any discussion in regard to these legal remedies. I contend they are the most democratic courts in so far as they are the most widely located and accessible, sitting most frequently, for the longest number of hours of all of our courts. They are staffed and operated by people who are closer to the community, understanding better their concerns.

The point has been made frequently that district justices tend to do funny things more often. That is not the case. That reflects their closeness to the community, as does the fact that their courts are so widely attended and reported in any given area, drawing more attention to them. For example, reports of proceedings in the High Court are rarefied, often couched in terms of the delivery of an important judgment on an issue, but what one reads or hears from the media in terms of proceedings in the District Court is the cut and thrust of daily life. I cannot think of a better forum to which people in any given district should resort to air their problems and grievances with regard to their marriages, seeking a fair judicial determination coloured by the experience of everyday life on the Bench.

That is not to say that the present condition of the buildings and facilities of the District Court are suited to the remedies being sought in this amendment. Many of our district courts have been neglected by respective local authorities or Ministers for successive decades and are in an appalling condition. If there were to be commitment to the fundamental principle I have outlined, an acceptance of the ideas contained in this Bill, then much work would have to be done on them. As I pointed out in the course of our deliberations in Special Committee, a lot of work has been undertaken by some local authorities in some areas, Dublin in particular, for example, in the metropolitan areas, in East Essex Street, and at the family district courts on the Quays that have modern facilities capable of dealing adequately with anything that might arise as a result of the acceptance of this amendment.

The practitioners in Dún Laoghaire brought me to County Wicklow to show me what can be done if a local authority is prepared to commit money to the development of proper District Court facilities. I am referring in particular to the court facilities in Bray, County Wicklow. The practitioners in Dún Laoghaire have been complaining for years about the appalling conditions under which District Justice Wine has to operate and they tried to illustrate their case by getting people to contrast the facilities there with those in Bray.

Kilmainham District Court is a disgrace to the concept of justice or its proper administration and for years the district justice — District Justice Hussey on occasions — had to withdraw from court because it was physically impossible to operate there. Many rural courthouses are completely out of date and no longer suit the purpose of the modern administration of justice. If we are to take on board the concept of the amendment, which I believe we should, local authorities, who have responsibility in this area, will have to invest money in the development of courthouses. If we do not accept the amendment we must bear in mind that there is an urgent need to deal with the conditions in many of our courthouses. Their dilapidated conditions impact on the quality of the job done on the day. The conditions certainly impact on the level of regard that people obliged to attend those courts have for what takes place there.

My argument is that facilities not existing is not a reason why the principle as first laid down should be done away with. I am referring to the development of the District Court and investment in it as the most important court in the land. We should increase and embellish its jurisdiction to enable it to deal more and more with the administration of justice on a daily and weekly basis. If the amendment is taken on board there will be a need to ensure that district justices are paid a proper wage. I do not believe that their present salary is adequate for the job they are expected to do and it will be far from adequate if we ask them to take on the responsibility of implementing the provisions in this Bill.

Legal education is a key to the success of such legislation. People have suggested that district justices, and judges, are incapable of administering the law properly and one of the reasons put forward is that we do not have any system of education for such people before they take up the job and, once they take on the job, there is no system of further education on the law and social issues. If there was a change in that procedure, we would be eliminating many of the reservations people have about giving the District Court jurisdiction to deal with the provisions in the Bill.

It must be recognised that the District Court exercises considerable jurisdiction in the area of marital breakdown and family law affairs. It deals with the safety of children, custody and the placing of children in a safe location where marriages are in trouble. It can deal with barring orders and can, in fact, judicially separate couples by barring one person from the home. It can deal with maintenance orders. In my view 100 per cent of those referred to in the amendment — when we are talking about property, we are referring to the issue of maintenance — will not have property or houses to dispose of. The only right of property any of them enjoy is the right of residence in a local authority house. It can be argued that because the District Court can bar people from a home for up to two years, 12 months, renewable for 12 months, we are not extending greatly the jurisdiction of that court in the amendment.

There is a worry about the District Court not carrying equitable jurisdiction and that it might not be appropriate for the court to have the right to decide on personal property up to a value of £25,000 or real property in settlement up to £25,000 as suggested by Deputy Taylor. I would not have any difficulty if those provisions were omitted from the Deputy's amendment because without them he will be achieving what he is setting out to achieve, particularly for those he is concerned about, namely, those who do not have property or wealth. We can achieve what Deputy Taylor wants and meet the worries of the Minister by compromising and giving the District Court jurisdiction to make declarations of judicial separation but restricting the cases to those where issues of substantial property or personal wealth are not involved. Issues of wealth and property by one means or another can be dealt with by the Circuit Court. Deputy Taylor is seeking to cater for 250,000 people whose spouses are unemployed. He is concerned about the one third of the population who live on or below the poverty line, people who will not be asking a court in granting judicial separation to deal with the disposition of the family home because that property will belong to a loan company or, more than likely, to the local authority.

As Deputy Taylor has pointed out, the key to all this is the poor legal aid service that we have. Lawyers working the law centres are anxious to keep jurisdiction for these matters to the Circuit Court but for the wrong reasons. They are grossly overworked and the centres are poorly staffed. However, there is an arrangement under the current legal aid rules which facilitates the solicitor in the law centre retaining the services of a barrister for the Circuit Court. The Legal Aid Board, and their rules, do not facilitate the retention of a barrister for practice in the District Court. Consequently, a family law matter to be dealt with in the District Court requires the attendance of a solicitor from the law centre. A family law matter to be dealt with at the Circuit Court is invariably dealt with by a barrister, almost exclusively, and requires the minimum of attention by the solicitor. It may not be the best professional arrangement but it is what happens in Dublin. I cannot speak for the rural areas but it is the way law centres in Dublin operate.

The solicitors who work in the Dublin law centres are worried that if jurisdiction in these matters is given to the District Court they will not be able to handle the increased work load and responsibility. That is why they are arguing that we should leave matters with the Circuit Court. They are wrong about that although they may be right for their own practical working reasons because they work under unbelievable conditions of pressure. At the drop of a hat law centres close their doors to new business for indefinite periods, up to three and four months on occasion. They do so because they cannot take on any new business due to the work load they must carry. They do not want that position exacerbated. It is their view that if the jurisdiction is left with the Circuit Court and they are able to draw on the help of barristers they will be able to deal with other work that arises at the law centres.

The Minister should consider changing the regulations governing the Legal Aid Board to allow for the retention of barristers for work in the District Court. If that was done family law cases, and other cases, could be dealt with by barristers in the District Court. There is no doubt that there are many barristers in the Law Library who are willing and able to do this work. They should be involved in work in the District Court but the legal aid rules do not allow it. If that was changed we would have the family lawyers' groups and associations supporting Deputy Taylor's amendment and going along with the suggestion that the District Court is as good a place as any other to deal with these or related matters. In discussing this amendment today we at least got the opportunity of scotching some of the misconceptions bandied about in regard to the quality of justice delivered in our District Courts. They are dedicated people doing a very good job and no argument should be made here that they are not capable of dealing with, or competent to deal with the issues that may arise. If there are reservations about the equitable area of jurisdiction then let us take out those two sections of Deputy Taylor's amendment and get on with the job of dealing with a major problem for those who, without money, will not, in the foreseeable future, be able to avail of the procedures and recommendations contained in this legislation.

This ground was well trodden on Committee Stage and on the last occasion when it was before the House generally. Deputy Taylor's argument is something of a side issue. The central issue is access in relation to this legislation. He has confused the issue of finance and extending the jurisdiction of the District Court.

It is clear that the competence of the District Court in this area must be put under scrutiney. It was never envisaged that the family law area would be reduced to District Court level. In that regard we have to look at the recommendations of the joint committee, a couple of years ago, to set up a family tribunal separate from the present court structure and empowered to deal with all matters pertaining to family law, from the barring order to the extension of judicial separation. It must be our aim to establish such a tribunal. Because it is unattainable at present through lack of funding we should not discard that aim.

Deputy Taylor's point is not so much about access to the District Court as about access to the court system by people whose marriages are in difficulty and who need a court proclamation or declaration as to the status of the marriage. The answer lies in funding the Legal Aid Board to allow such access. The Minister has spoken on a number of occasions about this issue. The dire situation of the Legal Aid Board, so eloquently portrayed by Deputy Taylor, must be borne in mind. I do not think the answer is to open up the District Court for such very important matters. There may be parallels, but they are in no way absolute. I know the District Court is empowered to deal with maintenance matters, barring orders and custody cases; but we are dealing here with the finality of separation, so there must be a question mark over the competence of the District Court to deal with such a matter. The District Court is the court of petty sessions, the court of first recourse, the minor court. Deputy McCartan spoke about the democratic nature of the District Court but we should also acknowledge the varying degrees of minority cases that are heard on a day-to-day basis there. We must look at the manner in which family law matters are being heard in our District Court. Over the past ten years there have been lengthy lists of family law matters to be dealt with in our District Courts. It is a fair assumption that many of our district justices, competent as they might be in other matters, do not like dealing with family law matters and are not trained in matters pertaining to family law.

One could say the same about the High Court and the Circuit Court.

These matters are appearing in the District Court on a day-to-day basis. One has only to look at the way District Court matters are adjourned at District Court level, at the way family law matters are listed for hearing at 2.30 p.m. to be completed by 3 o'clock or at 10.30 in the morning to be completed before 11 o'clock so that the normal District Court sitting can get under way.

These are the issues that are involved and which we have not thrashed out in deciding whether or not to take Deputy Taylor's amendment on board. We cannot have such matters heard at District Court level. In any event, the manner in which District Court decisions are treated by the vast majority of people is such that they carefully look for an avenue of appeal. That would happen time and time again were Deputy Taylor's amendment to be taken on board and that would leave us in a far more difficult position in regard to funding. What would be the point of allowing access to the District Court if it is just going to be a rubber stamp for an appeal to a higher court at a later stage? The resources in the District Court are such that they do not allow for an amendment of the magnitude of Deputy Taylor's amendment. One must look at the District Court buildings up and down the country and in Dublin areas. District Court sittings start early in the morning and in many instances run right through to 6 or 7 o'clock in the evening. This just goes to show now busy these courts are without extending their jurisdiction. If this amendment were to be accepted we would be talking about revolutionary changes in District Court structure. At present the District Court is the nearest thing we have to a small claims court. I see no reason for overhauling it to allow for increased jurisdiction. Were the amendment to be taken on board we would be talking about increasing the jurisdiction of the District Court beyond the £2,500 which a civil litigant can enter for at present. I feel there is no need for that, even aside from this legislation. Granting greater powers to the District Court is something that I feel it unnecessary at present.

The nub of the argument is the question of funding. There would appear to be a difference of opinion between Deputies Taylor and McCartan as to the role of the barrister. Deputy Taylor stated that by allowing access to the District Court the family law litigant could avoid the extra burden of barristers' expenses. Deputy McCartan, while agreeing with the thrust of Deputy Taylor's amendment, felt that at least the Legal Aid Board should allow the barrister into the District Court. What would be the saving to the litigant by a barrister travelling from the Law Library down the country to a District Court hearing instead of to a Circuit Court hearing? We would not, in any way, be reducing expenses, as Deputy Taylor envisages, if we allow barristers in; there is no way we can restrict a barrister. If a litigant wants to avail of the services of a barrister so be it.

If these matters were to be held in the District Court it would be open to a barrister to travel to the District Court. Obviously if one side were to retain the services of a barrister the other side would in many ways find something of an imbalance in their case were they not to do so. On many occasions there may be cases in which the litigant decides not to retain the services of a barrister. Again perhaps we should look at the possibility of opening up the Circuit Court to members of the legal profession other than barristers. If one agrees with Deputy Taylor on the question of the enormous expense of fighting a case in the Circuit Court there are alternatives other than access to the District Court.

Another matter that has to be taken into account but which I will not dwell on, relates to our court buildings. There is a lack of consultation rooms and any sort of facilities that would give rise to comfortable surroundings in court buildings. There should be a basic requirement that people going to court have private chambers in which to consult with the witnesses and with their legal advisers, rather than have lengthy queues of people in corridors as is the case at present. The District Court structure in terms of the physical buildings is not such as to cater for an expansion of family law lists. In many cases the courts are hardly able to cater for the family law lists because of the lack of physical facilities. There is the scandalous situation of family law cases being called in open court where people have to parade through a backroom in many rural district courthouses and have their cases heard in intolerable conditions. That point has to be addressed before this amendment can be taken on board. Again the reality is that the resources are not readily available to local authorities to undertake a radical reform of the court structure which would provide that courts could take on board an expanded role.

My overall view is that, as I have said initially, the District Court, being the court of minor jurisdiction and of petty sessions, is not the ideal-court in which to decide on such fundamental matters as the dissolution of a marriage. The answer to Deputy Taylor's concern about access, and I share this concern, is increased funding to the Legal Aid Board and an increase in civil legal aid centres around the country. In many cases people have to travel almost 70 miles to the nearest legal aid centre only to be told that they have to come back in six weeks time with detailed information. These are the issues that must be addressed rather than allowing these matters into the District Court.

There is one final matter I would like to refer to, and perhaps Deputy Taylor might explain it — I think he overlooked it in his opening comment — that is his final amendment which states "Rules of court providing for the robes of judges and counsel and for modes of address". Perhaps he might comment on what he means by modes of address in the district family law court. I do not suppose he has any other labels for the district justice or the sitting magistrate. Perhaps he might explain what he means in that amendment.

I have the greatest sympathy for what Deputy Taylor is trying to achieve here. I have no doubt but that his motivation is quite genuine. Initially perhaps I would have taken his side but on closer examination of the position I would have to say that the power to grant a decree of judicial separation in the District Court might not be the right way to approach the matter. The gravest danger is that it would introduce into the legal system a two tier system of dispensing justice, a system whereby the District Court and the Circuit Court would both be empowered to make decisions on the same issue. This in turn would perhaps lead to an inequitable situation whereby, because a person was of a certain social class he or she would go to the Circuit Court and if the person was in a different social class he or she would go to the District Court. That would lead to a considerable amount of confusion. It would perhaps be seen to be unequal and it might, in the final analysis, lead to the suspicion that there was no uniformity in dispensing justice in this area. That is one of the reasons I would be very loath to grant the powers to the District Court.

The point has also been made that the District Court is a court of summary jurisdiction and is intended to be so. One could make the argument not just in relation to judicial separation but to several other areas of law in this country that people are deprived, because of their incomes or their possessions, from going to court at all. This applies not just to judicial separation proceedings but also to many other areas of law. That is an unfortunate situation. One of the major reasons for it has been the fact that we have been unable, over the years, because of a lack of resources, to adequately fund the Legal Aid Board.

The question which arises in relation to people on low incomes is what precisely the District Court would be concerned with in terms of their property and possessions. I think it is fair to say that in virtually every case with which a court would deal, the question of the family home would arise, regardless of the income of the people involved in the case. The question then arises as to whether power should be given to the District Court to make an order in relation to the family home. We know the District Court, for example, does not have the power to award in excess of £2,500 in an accident case, a trespass case or whatever. Is it logical then to allow this court of summary jurisdiction to make an order in relation to the family home when it is clear that the average price of a family home in this country is far in excess of £2,500? That poses difficulties and is something one would have to be concerned with because of the nature of the District Court and the District Court system.

I agree with Deputy Taylor that there are difficulties of access in relation to low income couples but the present legislation gives far greater access than has been the case in relation to divorce a mensa et thoro in that at least now the Circuit Court will be in a position to deal with these applications whereas prior to this in cases of divorce a mensa et thoro one had to apply to the High Court. It is fair to say that unless one was fortunate enough to get legal aid one could not make any application whatsoever. To this extent the drafters of the Bill are to be congratulated in opening up the access to a greater extent than was the case previously.

I accept that access to the courts, because of the inadequate position with regard to the Legal Aid Board, is still inhibited to a certain extent. I would argue that solicitors throughout the country should examine the possibility of appearing in court in situations where people cannot afford to employ counsel. I recall, in the south-western Circuit Court two years ago, a solicitor apologising to Judge John Gleeson that he was unable to obtain counsel on the day. The judge rightly said to him he had absolutely nothing to apologise for, that he had every right to represent a client in the Circuit Court.

It would be incumbent on the Law Society to advise their members that in order to enable this Bill to reach everybody that they would, where people cannot afford to employ counsel, appear themselves in court. There is no law and no rule against that. It is something which should be looked into. The nub of the problem, unquestionably, is the position regarding the financing of the Legal Aid Board. If the Legal Aid Board were better financed the question of access would not have arisen in the context of this amendment because I think Deputy Taylor would accept that the Circuit Court is the correct court for the granting of a judicial decree of separation and, moreover, one would always be dealing with property where there was a dispute between the parties. The most important property to most people is the family home. It would be undesirable for a court of summary jurisdiction to make a decision of such momentous proportions, that is, the disposition or otherwise of the family home. That is one of my major objections. Regardless of the fact that people with property, possessions and higher incomes would go to the Circuit Court to deal with the property, etc. and the District Court would deal with those who could not afford to go to the Circuit Court, the problem still arises of the disposition of the family home. I do not think a court of summary jurisdiction is the correct court for dealing with that problem whilst having the greatest sympathy for the views of Deputy Taylor and the motives behind them.

I commend my colleague Deputy Taylor and, indeed, Deputy McCartan, for pressing and supporting this amendment. With due respects to our colleague who has just spoken, it is not a matter of sympathy, it is a matter of class structures, it is a matter of money and it is a matter of professional cornering of the market on a fundamental aspect of human life. Whether we like it or not that is what is at issue.

I get very angry when women, who come to my public information clinic in Dún Laoghaire, have paid £500 of £600 in cash to a solicitor before they move anywhere, whether to the District Court, the Circuit Court, the High Court or the Supreme Court. They pay the money up front and by the time they get into the Circuit Court for a separation they have paid £2,000 into the law firm. We all know what we are talking about. We all know the prohibitive cost facing ordinary women and men of middle and low incomes of going ahead with separations. This House is copperfastening the lucrative, professional and legal market of separation and of family disputes right down the line. That is the fundamental issue involved.

I am nauseated that people in this House should say that district justices do not like those cases, that they are not trained in such cases and yet the Deputies who have vehemently opposed this proposal by the Labour Party in Committee are the same Deputies who, in the mid-seventies, had no hesitation in saying that these same district justices could deal with fundamental issues of barring orders, custody of children and the day-to-day family income of an individual family in disputation. That is hypocritical to say the least.

I recall — and I participated as Chairman — lengthy meetings of a special committee in the seventies when we put through fundamental legislation in this House. There was not a whimper from any political party when we considered the question of custody of children. Is there anything more fundamental than the custody of a child? Yet, when it is the family property that is involved, the home, the bricks and mortar of the family, the whole system of separation must be retained for the Circuit Court. Is there anything more hypocritical than that? Is there anything more hypocritical than a woman who engages a solicitor, or gets some free legal aid from a court clerk and goes before a district justice, even in a kip of a building, without a waiting room or toilet facilities, and says to the judge: "I have no income. I am starving. I cannot go to a shop to buy a loaf of bread. I must have a maintenance order", being told, in our magnanimity as legislators and with our professional sympathy, that it will be resolved in the District Court? That is all human life preserved for this yobbo of a district justice who has no training, who is unsympathetic, who is badly paid and who, of course, does not like to deal with such matters.

I come now to the question of barring orders. I know of nothing more fundamental in human life than that one spouse should seek to have another spouse removed from the dwelling, removed from the family home——

Temporarly.

For two years.

——for two years. The prospect of going back again——

Every year.

——and the prospect of going back for another year — is there anything more fundamental than that? Even to be removed from one's family bed, one's family home, one's livingroom, one's kitchen, one's involvement with one's spouse for a mere week I find traumatic. For a mere month I would find it extraordinary and for two years I would find it something of monumental importance to my life. Of course, in our magnanimity we say that solicitors can deal with such family disputatious trivia except separation. This wonderful word "separation" and the finality of separation must go up the line. It is because firms of solicitors and the barristers have cornered the market. You will not get a separation nowadays in the Circuit Court unless you have £2,000 in your pocket and are willing to put the money up front. We know that the cost of going to court nowadays is horrendous. I had to face this at the last general election when I had to seek an injunction. I suddenly discovered the cost involved. There was the prospect of losing my family home if I had lost the case for an interim injunction.

In simple terms the Bill provides that the children who are protected in the District Court and whom we deem, if I may borrow a phrase, to be the children of the petty sessions court, be dealt with at District Court level. The protected income of the spouse, the fundamental maintenance of the spouse is deemed to be a matter for the small claims court. The barring of spouses is considered to be of minor jurisdiction and we let the district justice handle it but everything else must go up the line. Deputy Taylor has put forward in simple terms the concept of a district family court. This is fundamental to the legislation. Indeed, with due respect to Deputy Shatter and his colleagues in the Fine Gael Party, we are now questioning the competence of district court justices. Frankly, I would prefer to be analysing what is meant by the characteristics of a normal marriage — because that is now built into the Bill — or dealing with the question of what are abnormal characteristics since this is also built into this very flawed Bill. As we all know we should have divorce legislation instead of this kind of legislation which is the classical Irish solution for a fundamental Irish problem. We now have a problem deciding on the competence of the District Court. I must take great issue with Deputy Flanagan when he said it was never envisaged to enlarge the competence of district courts. It was envisaged and we did so in the mid-seventies when we brought in fundamental legislation on barring, custody and maintenance for familial problems. Therefore I do not accept the arguments put forward either by the Minister or by the Deputies here today that we have to retain an exceptional competence for the Circuit Court in this area because it will mean one judicial system of adjudication for the rich and another one for the poor. That is why we will vote here today in favour of Deputy Taylor's amendment.

I recall vividly, and it is now ten years ago, when Mrs. Josie Airey brought the claim that her right of access to the courts for a judicial separation was being effectively denied by the State's failure to provide an accessible legal procedure. In 1979 she screwed it out of the Government and it was conceded before the European Court of Human Rights that the Government would and should introduce legal aid in family law matters. With the succession of cuts we have eroded that right. It is pathetic to see our legal aid and advice centres around the country, because women with serious marital problems have to wait two or three months for consultation because of the cutbacks in local services. Indeed the four centres which were opened in 1984 as a result of provisions for legal aid from the Funds of Suitors are now threatened with closure because the funding is virtually exhausted. To quote back to the lawyers, justice delayed is fundamentally justice denied.

Solicitors, I understand, are now entitled to advertise. Under the new rules, a solicitor can say: "here is my card, I will see you in my office but bring £500 with you; we will have a 20 minute consultation and remember that we will have to engage a barrister all the way up to the Circuit Court and that will cost a minimum of £1,000 up front. This type of case demands hard work; it may go on and on or it may be adjourned and that would require another £1,000." On average, therefore, it will cost £2,500 before the family can go ahead. Even in my constituency, which is the wealthiest constituency in Ireland, I have women coming to me who will not get free legal aid, who have reached the pitch where they have no income, but who must seek a separation. We are saying to these people: "sorry, but the barristers must look after you and it will cost £2,500 to get your separation". I can give examples by chapter and verse. The legal profession in this country have a lot to answer for in that regard, but more particularly we have a far greater responsibility to discharge, because we are denying these very women the opportunity of going to the District Court which is removed from the mystique which surrounds the disputes on legal separations. A great mystique has built up around the procedures for people seeking human redress. There is a body of case law available to any decent district justice or lawyer and it should not be beyond the bounds to have these matters dealt with expeditiously, competently and reasonably cheap without cheeseparing or without people not being paid their due fees. Whether it be the medical or legal professions I believe people should be paid fairly for doing their work but I do not believe in paying above the odds for what should not have to happen but which is currently being built up by some situations which we are all only too familiar with.

I see no justification for this fundamental change in the Bill not being conceded by the House, because this House saw fit already, to allow the District Court to look after children, to look after the basic maintenance of spouses and to deal with the major decision of barring somebody from a house. If we gave that jurisdiction to the District Court in 1975-76 why in God's name can we not give it the finality of a separation? I reject the slur that some district justices are not capable of doing this work. They are perfectly capable of doing it and I do not see any exalted role for Circuit Court judges as they have not special training. Indeed if you want to go down through the same kind of argument, there is eminently good reason that there should be a district family court system and if we require special training or special accommodation facilities that can be provided in a totally effective way.

Again, I commend Deputy Taylor on his amendment. He has thought it through during the past 12 months. He is a member of the legal profession and he has spoken to many solicitors and barristers about the matter. I am not a member of the legal profession but I have spoken to many members of it and they agree fundamentally with this amendment. It is not sympathy that the spouses need today, but action. The Bill without this provision is just a class-ridden money structured pleading which is not worth the paper it is written on as far as hundreds of families are concerned because they have not got the money to go to the Circuit Court. We cannot see how their plight will be remedied in that situation.

I will be extremely brief. I have made my case against these amendments twice already on Committee Stage. Nothing that I have heard has changed my mind. It suits some Deputies to see this set of amendments in class ridden terms. Unfortunately it is not as simple as that and the solution which has been presented here by Deputy Taylor and the Labour Party is no solution to the problem. The problem is accessibility, to enable anybody who needs this remedy to avail of it. This is not the way to go about it. It would be fundamentally wrong to put this type of case into the District Court. I will make no further remarks.

Deputy Desmond's interest in this matter seems to have diminished on the conclusion of his speech as he has now left the House. I regret that the Labour Party are now trying to make some false political capital out of this Bill. They are trying to use it as a political football. They are deliberately misleading people who have been awaiting the enactment of this Bill to afford them real assistance with their family problems, by suggesting to them that when the Bill is enacted it will not be of help to them.

In fairness to Deputy Taylor, whose language was a great deal more moderate than Deputy Desmond's, although he is going about it in the wrong way, he has a genuine concern about this. Deputy Desmond got lost in the middle of his own rhetoric and at the end of the day one was confused, considering the extent of Deputy Desmond's concern and the elaborate illustrative nature of his rhetoric, as to why when he was in Government for four years, he did not do something about these issues. We had a Labour Attorney General for three and a half years in the last Government Administration and he did not bring forward any legislation which he could have done proposing that the District Court should have jurisdiction to grant separation decrees on the basis of any new legislation, or even on the basis of the old legislation. Clearly when the former Attorney General was in a position to make a recommendation to the Government that the District Court should have jurisdiction to grant separation decrees, from a position of strength in three and a half years in Government, he did not do so as he was obviously of the view that it was not appropriate that the District Court should have such jurisdiction.

It is noteworthy that when Deputy Taylor brought a Bill before this House, which I and some of my colleagues in Fine Gael supported, to bring about a referendum on divorce in March or April 1986, before the Government Bill on this issue was brought forward, Deputy Taylor recommended that if and when divorce decrees were granted they were to be a High Court measure. There was no suggestion that the District Court would have jurisdiction. Nobody suggested that Deputy Taylor was proposing divorce for the rich with the intent of depriving the not so well off and those on social welfare benefits of the right to seek a divorce.

It is a most dishonest political charge to make that this Bill is designed to help the rich and to leave the poor without a legal remedy. It is a charge that is politically inspired to seek some false political benefit for the Labour Party. The reason the Labour Party get so little support from the electorate is that when they engage in this sort of elaborate misleading, most people do not believe them.

In relation to this Bill and the Circuit Court's jurisdiction, this Bill when drafted was designed to make separation and family law court proceedings a great deal simpler and less expensive. The Bill contains provisions which will enable the courts when asked to determine whether a separation decree should be granted and to make all comprehensive court orders necessary to resolve any family controversy between a husband and wife.

Under the current law multiple sets of court proceedings can be required. Indeed, husbands and wives can sometimes find themselves trooping through two or three different courts to deal with different aspects of their family problems. This Bill was designed to cut out that type of thing. This Bill by providing a less formal procedure before the Circuit Court and by allowing for simplified forms of documentation, will easily allow any solicitor who has the competence to do so, to represent a husband or wife in family law court proceedings without the assistance of counsel. Unfortunately, few solicitors currently avail of that right, although there is no reason why that should not happen.

Couples who do not wish to obtain legal advice for one reason or another can in this less formal court bring their own applications without legal help. They will be as well able to do that in this Circuit Court structure as they could in any District Court structure. Those who wish to be legally represented but do not have means are the real issue. This is an issue which the Labour Party have distorted in the context of this Bill, only since we were successful in resolving the other issues, because it would be less difficult for the Labour Party to acknowledge that this measure would actually help people, not only those who support their party but other parties and people who are not interested in politics at all but who have family problems.

There is a problem in relation to resources but that problem applies whether separation or family law proceedings are dealt with in the District Court, the Circuit Court or the High Court. The report of the Legal Aid Board from which Deputy Taylor quotes, and to which the Minister Deputy Collins correctly referred, points out — and this is a point to which Deputy Taylor has failed repeatedly to respond because he knows it is a valid point — not that the Legal Aid Board has called on this legislation to extend to the District Court granting separation decrees but that due to the number of marriages breaking down and to the extent of the demand for services and since this Bill has come before this House, due to the likely increased demand, they need more resources to meet that demand. There is nowhere in any report from the Legal Aid Board, in any of the years during which they published reports, a statement saying that in their view it would make the law more accessible if the District Court granted decrees of separation. This was not said by the Legal Aid Board prior to the publication of this Bill or since. Those resources will be required whether family law or marital breakdown cases are being dealt with at District Court or Circuit Court level. It is a question of resources, of providing proper funding for the Legal Aid Board. That cannot be done by way of a Private Members Bill.

One of my regrets is that the Labour Party's Attorney General in the last Government did not bring before this House a statutory measure for what is currently a non-statutory civil legal aid system. If it was a matter of such concern to Deputy Taylor and his colleagues one would have expected that sort of legislation to have been brought forward. If that were done it might have made it easier for Deputies in the Fine Gael Party, the Labour Party, the Progressive Democrats' Party and in The Workers' Party, to require Government to produce the necessary resources to ensure that the system works properly. It is a question of resources. The Minister has quite correctly acknowledged that when this Bill becomes law there will be greater demands on the Legal Aid Board and on the law centres. When I introduced this Bill, during the Second Stage reading I made the point that we would be looking to Government to provide those necessary additional resources so that those couples who wished to avail of the remedies provided for in this Bill and who could not afford legal fees could have the necessary legal assistance. It is quite politcally misleading and dishonest to suggest that the problem relates to the jurisdiction and to the type of court, but that it does not relate to resources. The problem relates to resources for the Legal Aid Board. It is not a question that if the District Court were given jurisdiction there would be no problem in this area but if the Circuit Court are there will be a problem.

The reason this Bill establishes the Circuit Family Court is that the Oireachtas Joint Committee on Marriage Breakdown, which was supported by Deputy Taylor's colleagues — Deputy Eileen Desmond and Senator Mary Robinson who was then a member of the Labour Party — recommended that there should be one court which would have a comprehensive family law jurisdiction, which would deal with all aspects of marital breakdown and separations, and, which, desirably, should be a family tribunal. They made the point at page 111 in the report of the Oireachtas Joint Committee, and I quote "Until now family cases have been relegated to an inferior position in a legal process totally unsuited to their resolution. In the future they must be treated as a special area which requires a fundamentally, different approach and structure for their determination." What Deputy Taylor is proposing in this amendment is to forever more keep separation and family law cases relegated to an inferior position in a legal process unsuited to their resolution.

We could not, in the context of a Private Members' Bill, establish a totally new court such as a family tribunal which was separate from the existing court structure because one cannot in a Private Members' Bill provide for additional expenditure on the Exchequer. What we did was to go to the very borders of reforming the Circuit Court to deal with family matters in a way which would radically change the approach which is currently adopted, which would guarantee that judicial separation proceedings would be dealt with by way of a fundamentally different approach and that there would be an appropriate court structure to deal with it.

By establishing the Circuit Family Court, which will have primary jurisdiction to determine all separation cases across the eight circuits within this country, through the use of the Circuit Court structure we will ensure a degree of uniformity of approach on the part of the Judiciary within that structure. Because the Circuit Court sits in local areas, to use Deputy McCartan's colourful phrase, a democratic court system — I assume "democratic" in this sense meaning an accessible court — will be accessible to everyone but it will be an accessibility to a limited number of judges who will develop a degree of expertise applying the provisions of this Bill, as many Circuit Court Judges have since 1981 in dealing generally with family law matters, so that there will be a uniform approach, that both the rich and poor will be treated in the same way by our judicial system and that we will not provide one set of courts for the poor and a different set for the rich with different principles being applied by the Judiciary.

It is noteworthy that Deputy Taylor, both in the Special Committee and in this House, did not address a number of issues I raised about this amendment which is in identical terms to the amendment he brought forward in the past. I pointed out that this amendment gives rise to all sorts of problems. Rather than assisting people who are in difficult financial circumstances to get just treatment with their family problems through our courts this amendment, as tabled, would provide a mechanism whereby — if one assumes that it is a wife who is normally dependent — a recalcitrant husband who wishes to evade his responsibilities could, by seeking a District Court separation decree, seek to obtain a separation decree in a court whose jurisdiction would be so limited as to enable that husband to evade his true financial responsibilities to his wife. Deputy Taylor has not addressed that issue despite my raising it a couple of weeks ago on Committee Stage. He has not seen fit to see if he could even amend the provisions he has tabled to get around that problem.

In applying the barring order provisions in the District Court, I made the point — and Deputy Desmond seems to be somewhat confused about this — that if one gets a separation decree because of violence or some other serious misconduct in a matrimonial home, a wife will most times seek to have her husband barred from the home or a husband who is being battered will seek to have his wife barred. As the Bill is framed currently if a wife seeks a barring order it can be a barring which will remain in force for all time but under Deputy Taylor's amendment a battered wife would have to come to court every 12 months. That would be some separation decree when a wife would have to come back to court every 12 months to refight the matrimonial battle. That would be some way for a couple to put a broken marriage behind them and to get away from the antagonism, upset and distress of a broken marriage but to suggest that it is a useful remedy to provide the District Court with a jurisdiction which would require a wife to come back every 12 months is a problem which affects both the rich and the poor.

A battered wife living in local authority rented accommodation will as much seek a barring order to have her husband permanently barred from the family home as will a more wealthy wife living in a detached house in the middle of Foxrock who is being battered. Wives do not want to come back to court every 12 months. Deputy Taylor in portraying this amendment as being of help to people in poor circumstances, has not even worked out provisions to ensure that if the remedies were made available in the District Court they would be adequate to provide protection and allow couples whose marriages had collapsed to put the distress of a broken marriage behind them. This is a recipe for an ongoing matrimonial annual legal battle between husbands and wives for ever following the grant of a separation decree.

I fully support what Deputy Taylor says in the context of demanding that adequate resources be provided for the Legal Aid Board to establish solicitors in law centres who will be able to deal with the demand, but in the context of proposing that the District Court has a jurisdiction under this Bill, he is wrong in suggesting that this proposal will resolve the difficulties of lack of resources. The amendment is so poorly and badly drafted that it could undermine the foundations of the Bill and the protections designed to provide help for both the rich and poor, husbands and wives, and all those who are the casualties of broken marriages.

I do not want to be repetitious in responding to this debate. I want to thank Deputies who have contributed, some in a constructive manner and others not quite so constructively. Deputy Shatter in particular in his usual fashion has sought to cast a mist over the reality and the nub of the problem which this amendment seeks to address. This is not unusual for him. He threw in phrases like "false political capital", "what the last Government did not do" and "what the labour Party Attorney General did not do" but he did not mention what Peter Sutherland, the Fine Gael Attorney General, did or did not do. Neither he nor the other Deputies who have addressed this amendment have answered the basic problem I posed: what do we say to a woman who needs a judicial separation but who does not have £1,500 for the fees? Nobody answered that question. They dealt with the resources, District Court buildings being bad, and some district justices not wanting to hear family law cases. There is some degree of merit in all of those points, but it comes back to the same basic question: what do we say to the woman in a clinic who needs a separation but who does not have £1,500?

It is no good saying that somebody will do "trickery" in the District Court and that if the jurisdiction is not there, the District Justice will deal with the matter or refer it to the appropriate jurisdiction. I am not talking about these technical points; I am talking about the major access point to the remedies of the Bill. Let us be honest about this. I am accused of political dishonesty here, but I throw that back in Deputy Shatter's face by asking where is his honesty? Where does he tell that woman to go? That is the nub of the matter. The answers bandied about here were for more funding, more resources and more money for the legal Aid Board. Of course, it could be or might be the answer, but it is not the answer because there is no more money being given to the Legal Aid Board. The reality is that less money is being given to the Legal Aid Board and that the needs of that board, when this measure is passed, will substantially increase. What do we say to the spouse who needs the separation? Neither the Minister nor anybody else answers that question.

Deputy O'Donoghue summed up the matter when he said that persons of one social class will go to the Circuit Court while persons of a lower social class will go to the District Court. Deputy O'Donoghue is not present but I say to the House that if we do not accept this amendment people of one social class will go the Circuit Court and those of a lower social class will not go to any court because they will not have access to any court. Do not tell me that the answer is resources, funding to the Legal Aid Board. That is just not on and we know it. If we want to do something to help those people, we must think about what we can do. There is only one thing I can think of and that is to open up the cheaper and more accessible remedies to the forum of the District Court. If anybody else has any other idea for helping them, let them say so. Nobody has suggested any other way of doing it. There is no other way of doing it.

This talk of a Tallaght strategy sickens me now. If there is one irony about the so-called Tallaght strategy, it is that if there is one town in the whole of Ireland for which the Tallaght strategy is a disaster, it is Tallaght. People there, many of them tragically, have to deal with broken marriages and do need judicial separation. If we allow this measure to go through, it is curtains for them. The Bill will be there, but they will not be able to use it. I know that the Legal Aid Board did not concern themselves with, or were not advocating the giving of a District Court jurisdiction; that is not their function. How could they do that? They did draw attention to the fact that they had not the resources to provide the legal aid needed for judicial separations. That was as much as they could do.

On page 111 of the Oireachtas Joint Committee report to which Deputy Shatter referred us, there are other parts that he did not refer to. I refer the House to the portion dealing with costs. The report says:

There is little doubt that the costs of resolving marital disputes through the legal process constitute a major burden on persons obliged to have recourse to the system. The Committee has been informed that the legal costs involved in taking an average family case through the various steps to a one-day full hearing in either the Circuit or the High Court could be in the region of £1,000 to £2,500.

I might say, as an aside, that the costs have gone up much since then.

The quotation continues:

This level of legal costs is a major disincentive and in many cases effectively prevents people obtaining the remedy they require.

There is nothing anybody here has said, Deputy Shatter and the Minister included, that gives an answer to that problem, which is a very real one. Whether the barring order is for one year and renewed for another year or whether one has to come for the order or not, at least one can get into a court and have one's remedy.

Again at paragraph 9.1.9 it is stated:

No matter how much legal costs are reduced people will still exist who cannot afford to pay from their own resources for legal help. Access to justice must be available to all irrespective of their means

In regard to the Government Law Centres system, it stated:

The experience of its operation since its establishment suggests that the present structure is grossly inadequate, in that it certainly does not assure equality of treatment for all.

There is one nub point contained there, that the costs by reason of this Bill, notwithstanding the simplifications, are not going to go down. Some member made the point to the committee that the people there will not be wearing wigs and gowns. Perhaps not, but they will not reduce their fees on that account.

There is an intense legal lobby going on in connection with this amendment. Those lawyers who make a great deal of money out of this kind of measure do not want a District Court jurisdiction because it will affect their pockets and because the fees they get will be very considerably less. That is why many do not want the amendment; it is not for any genuine reason they do not want it. The Labour Party have a genuine reason here. We applaud Deputy Shatter for providing the remedies but the remedies are not good unless accessibility to them is opened up to the people who need to avail of them. There is no other way of doing it and that is the reality. I invited the Minister to say that he will sort out the position of the Legal Aid Board and give them funds. If he had said that, that would be fine, but he gave no indication of that. We know that he will not do it. I invite the House to do the one remaining thing that it can do, to open up District Court jurisdiction that ordinary people can go to in the same way as they do now, with the District Court clerks helping them out at no cost at all.

Of course, there are some district justices who do not like doing family law. What a ridiculous point to make. Of course, there are Circuit Court judges and also High Court judges who do not like doing family law cases. So what? There are plenty of solicitors who do not like practicising in family law courts and some do not practice there, but those who do practice there do very well.

As I said, the Tallaght strategy is a disaster for the people of Tallaght and the sooner we and the people recognise that fact, the better. What are we doing here now? We are having one jurisdiction. An extremely wealthy family in Deputy Shatter's or Deputy Desmond's constituency, with assets of £150,000 to £300,000, cars and bank accounts and all the rest, who need a separation will go to the Circuit Court with no problem at all. They could go to the High Court or the Supreme Court, or anywhere they liked because they could afford to do that. They can afford the fancy fees of the fancy lawyers who practice there. Those who live in Tallaght, venue of the so-called Tallaght strategy, who live in a corporation or county council house and who have no money at all, who could not even afford the £15 subscription to the Legal Aid Board, if they could get the board to take their case, will get no good out of this Bill unless we open up its remedies to them. That is why the Labour Party brought forward this amendment and that is why I am asking for it to be put to a vote.

Amendment put.
The Dáil divided: Tá, 16; Níl, 106.

  • Bell, Michael.
  • De Rossa, Proinsias.
  • Desmond, Barry.
  • Gregory, Tony.
  • Higgins, Michael D.
  • Howlin, Brendan.
  • Kavanagh, Liam.
  • Kemmy, Jim.
  • McCartan, Pat.
  • Mac Giolla, Tomás.
  • O'Sullivan, Toddy.
  • Pattison, Séamus.
  • Quinn, Ruairí.
  • Spring, Dick.
  • Stagg, Emmet.
  • Taylor, Mervyn.

Níl

  • Abbott, Henry.
  • Ahern, Bertie.
  • Ahern, Dermot.
  • Ahern, Michael.
  • Andrews, David.
  • Aylward, Liam.
  • Barrett, Michael.
  • Barrett, Seán.
  • Begley, Michael.
  • Birmingham, George.
  • Boland, John.
  • Boylan, Andrew.
  • Brady, Gerard.
  • Brady, Vincent.
  • Brennan, Matthew.
  • Brennan, Séamus.
  • Browne, John.
  • Bruton, John.
  • Bruton, Richard.
  • Burke, Liam.
  • Byrne, Hugh.
  • Carey, Donal.
  • Conaghan, Hugh.
  • Connolly, Ger.
  • Cooney, Patrick M.
  • Cosgrave, Michael Joe.
  • Coughlan, Mary T.
  • Cowen, Brian.
  • Crotty, Kieran.
  • Crowley, Frank.
  • Daly, Brendan.
  • Davern, Noel.
  • Deasy, Austin.
  • Deenihan, Jimmy.
  • Dempsey, Noel.
  • Dennehy, John.
  • de Valera, Síle.
  • Doherty, Seán.
  • Dukes, Alan.
  • Durkan, Bernard.
  • Ellis, John.
  • Enright, Thomas.
  • Fahey, Frank.
  • Fahey, Jackie.
  • Farrelly, John V.
  • FitzGerald, Garret.
  • Fitzgerald, Liam.
  • Fitzpatrick, Dermot.
  • Flaherty, Mary.
  • Flanagan, Charles.
  • Flood, Chris.
  • Foley, Denis.
  • Gallagher, Denis.
  • Geoghegan-Quinn, Máire.
  • Griffin, Brendan.
  • Harte, Paddy.
  • Haughey, Charles J.
  • Hegarty, Paddy.
  • Higgins, Jim.
  • Hilliard, Colm Michael.
  • Hyland, Liam.
  • Jacob, Joe.
  • Kelly, John.
  • Kirk, Séamus.
  • Kitt, Tom.
  • Lawlor, Liam.
  • Lenihan, Brian.
  • Leonard, Jimmy.
  • Lynch, Michael.
  • Lyons, Denis.
  • McCarthy, Seán.
  • McGahon, Brendan.
  • McGinley, Dinny.
  • Mitchell, Gay.
  • Mitchell, Jim.
  • Mooney, Mary.
  • Morley, P.J.
  • Moynihan, Donal.
  • Naughten, Liam.
  • Nealon, Ted.
  • Nolan, M.J.
  • Noonan, Michael (Limerick East).
  • Noonan, Michael J. (Limerick West).
  • O'Brien, Fergus.
  • O'Dea, William Gerard.
  • O'Donoghue, John.
  • O'Hanlon, Rory.
  • O'Keeffe, Batt.
  • O'Keeffe, Jim.
  • O'Keeffe, Ned.
  • O'Kennedy, Michael.
  • O'Leary, John.
  • O'Rourke, Mary.
  • Power, Paddy.
  • Reynolds, Albert.
  • Roche, Dick.
  • Shatter, Alan.
  • Sheehan, P.J.
  • Smith, Michael.
  • Stafford, John.
  • Swift, Brian.
  • Taylor-Quinn, Madeleine
  • Wallace, Dan.
  • Walsh, Joe.
  • Walsh, Seán.
  • Woods, Michael.
Tellers: Tá, Deputies Howlin and Stagg; Níl, Deputies V. Brady and J. Higgins.
Amendment declared lost.
Amendments Nos. 4 to 8, inclusive, not moved.
Bill received for final consideration.
Question proposed: "That the Bill do now pass."

On Fifth Stage, I would like to make a very brief contribution. This is an historic occasion in that this is the first time in over 30 years that a Private Members' Bill has passed through our legislative process and the first time since the foundation of the State that we have passed legislation to provide a modern legal framework for separation laws. I hope this sets a precedent in so far as the passing of Private Members' Bills in the future is concerned. It should not be an unusual occasion in a parliamentary democracy for a Member of Parliament outside of the Government to steer legislation through the Oireachtas. I hope we have all learned some lessons from the passage of this Bill and that we have learned that the Opposition benches can on occasion bring forward constructive legislative measures which can be of help in resolving problems being faced within our country. I hope Governments of all political persuasions, be it this Government or future Governments, will accept that measures of a legislative nature can be brought forward and agreed to with Opposition parties without there being any loss of face on the side of the Government and can result in praise for the Government for co-operating with the Opposition parties.

This Bill has had a somewhat stormy passage. At the outset there was a great deal of co-operation. Then we went through a difficult period but to use the language of marital difficulties we "reconciled our problems". I hope this measure will be of great help and assistance to the many hundreds, possibly thousands, of couples whose marriages have collapsed. This Bill will provide a modern, humane framework of legislation. It recognises the role that wives play in the home and provides for the obtaining of a separation decree without exacerbating animosity between the spouses. It provides additional protection for the welfare of children, for a modernised and simplified court structure and the establishment of a circuit family court.

We have taken a great step forward in the area of social legislation. I would like to thank the Members of the House on the Opposition benches for their support and assistance without which this Bill could not become law. I would also like to thank the Government for their support and help in resolving the difficulties which emerged between the Opposition parties and Fianna Fáil in respect of this measure, and for agreeing to the taking of the Bill in Government time today in order that we could complete its passage. I hope it will have a speedy passage through the Seanad and rapidly become law.

I am glad to say, on behalf of the Minister for Justice, that the Bill as it now stands speaks for itself. He is satisfied that it will give the best possible protection and financial security to spouses and dependent children. The background to the differences concerning the original Bill are now well known. When the Bill was before the full House on earlier Stages it must indeed have appeared that the differences were so great as not to be capable of resolution. We have come a long way since then. The changes which were subsequently put before the Special Committee on recommittal where on an agreed basis and covered every point of difference. The efforts of Deputy Shatter and others in working out an agreement with the Minister are to be commended. We now confidently look forward to the early enactment of a worthwhile Bill which will add greatly to the reform of the family law area.

I would like to join with Deputy Shatter and the Minister in welcoming the passage of this Bill through the Dáil even if it is not in the final form we would have wished. Nonetheless, it marks a great improvement in family law and will be a valuable addition to the remedies for families whose marriages have broken down.

I agree that the facilities for Private Members' Bills in this House should be expanded. This was discussed in a Dáil committee some years back and thought was given to the question of having the House sit on Fridays to take Private Members' Bills. Perhaps the Taoiseach and the Government would look again at Bills of a non-controversial nature which could be of immense benefit to the people.

As it is now 2.30 p.m. I am required to put the following question in accordance with the order of the Dáil on this day: "That the Bill is hereby passed."

Question put and agreed to.
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