Dáil Éireann debate -
Friday, 26 Mar 1993

Vol. 428 No. 4

White Paper on Marital Breakdown: Statements.

Minister for Equality and Law Reform (Mr. Taylor)

As the Minister responsible for a newly established Department which has just begun work on a major programme of family law reform, I am particularly pleased that it has proved possible to arrange for this debate on the White Paper on Marital Breakdown to take place. I would particularly like to thank Deputy Mary Harney whose idea it was that the House should devote a day to discussing the White Paper.

I have no doubt that all Members of this House, as part of their work in their constituencies, encounter time and again the difficult and often desperately sad circumstances, which can arise where marriages run into trouble. Indeed, due to my own professional background, I have been involved with such matters long before becoming a Member of this House.

In dealing with such a complex and sensitive area as marital breakdown I believe that we could all agree that we, as legislators, do not have available some repertoire of magic solutions which can in some way make the breakdown of a marriage pain-free for the people involved. Nevertheless, there is a clear duty on us to do what we can, by legislation, to ensure that where marriages do, unfortunately, break down there is an appropriate and adequate response in our laws. There is, of course, also the primary obligation on us to ensure that, in the area of social policy generally, we do everything we can to help preserve existing marriages.

I expect that today's debate will show that a wide diversity of opinion exists on the major issues covered by the White Paper but also that there will be a general consensus that there is a need for reform in this area. I also hope that there will be a broad measure of agreement about the objectives of policy in the area of marriage breakdown; that is, where achieveable, to promote marital stability, to provide support for family life, and, where marital problems arise, to ensure that adequate and realistic protection is available for the parties affected, particularly dependent spouses and children. In particular the position of dependent children can be sad indeed, as they witness the nightmare of parents emotionally and sometimes physically tearing the family unit apart.

As the House will be aware, the White Paper on Marital Breakdown was published last autumn by the then Government. The White Paper outlined the present state of family law in this country and included many proposals for reform. Since then, in the partnership programme for Government, a major programme for family law reform was agreed which included a commitment to hold a referendum on divorce next year. While that is the general background against which we will be approaching this matter I would like to take this opportunity to make it clear that I would welcome responses from Deputies, individuals and interest groups in relation to the many issues outlined in the White Paper and any other issues arising generally in relation to marital breakdown.

I know that all in this House are acutely aware of the complexity of these issues and are also aware of the need to proceed with care and sensitivity in addressing them. I am happy that the Members of the House are now being afforded an opportunity to present their views in the course of today's debate and I can assure them that I will take full account of the views expressed in the course of the debate. There will, of course, be further opportunities to discuss the specific issues outlined in the White Paper in greater detail when I am in a position to bring individual legislative proposals before the House. In that context I would now like to outline some of the legislative proposals in the family law area which I hope to bring forward at an early stage.

Perhaps of great significance, both in the context of marital arrangements and equality, is the proposed legislation on joint ownership of the family home. Deputies will be aware that, as matters stand at present, a spouse who contributes to the family welfare by looking after the house and family but who does not make a financial contribution, does not acquire any share in the ownership of the family home. The Family Home Protection Act offers protection to such individuals by providing that one spouse may not sell or mortgage the family home without the prior consent in writing of the other spouse, but the ownership of that home remains unaffected. I think we would all accept that a spouse, who is engaged in looking after the house and family, makes a contribution which, in many ways, is beyond calculation and one which should be clearly recognised.

Successive Governments have indeed recognised that there is a basic injustice inherent in this situation. It flies in the face of modern notions of equality and fairness. It is not surprising, therefore, that proposals have been made over a number of years to give each spouse a statutory entitlement to an equal share in the ownership of the family home and household chattels. This House may, perhaps, be somewhat cynical about such proposals, given their relatively long pedigree. However, the plain fact of the matter is that while the principle of joint ownership is relatively straightforward its implementation, of necessity, gives rise to a host of complex issues.

Nevertheless, I am pleased to be in a position to indicate today that the drafting of this legislation is at a very advanced stage. While there are many priority areas in my legislative programme this particular issue is one to which I assign considerable importance and I expect to introduce the necessary legislation before the summer recess.

The introduction of this legislation would of course be in line with recommendations made by the Commission on the Status of Women and I believe that the principle involved in the legislation — that spouses should be joint owners of the matrimonial home and the household chattels — is one which is widely accepted on all sides of the House.

I am also proceeding with the introduction of a Family Law Bill along the lines of the scheme of the Family Law (No. 1) Bill contained in the White Paper on Marital Breakdown. This Bill will enable the courts to make certain orders making financial provision for spouses and children following the grant of a decree of nullity and, subject to certain conditions, following the grant of foreign decrees of divorce, nullity and judicial separation which are recognised in this country. It will also restate, with amendments, the law which enables a person to apply to the courts for a declaration as to the validity of his or her marriage. The Bill will also provide for significant improvements in existing maintenance arrangements by providing for secured maintenance and lump sum payments and for the making of an attachment of earnings order at the time a maintenance order is being made. It will also give the Circuit Court jurisdiction in nullity cases.

I believe that developments along the lines proposed in both these Bills will represent a substantial and desirable addition to our corpus of family law.

I also propose to proceed in the short term with legislation which will enable us to ratify international conventions aimed at facilitating the enforcement of maintenance payments. Two Bills are proposed, namely, the Jurisdiction of Courts and Enforcement of Judgments Bill and the Reciprocal Enforcement of Maintenance Bill.

I am pleased to inform the House that the drafting of legislation on the Jurisdiction of Courts and Enforcement of Judgments Bill has now been finalised and I expect to publish it shortly. The purpose of this Bill is to enable Ireland to ratify two international conventions dealing with the recognition and enforcement of court judgments, including maintenance orders. One of them is consequential on the accession of Spain and Portugal to the Brussels Judgments Convention of 1968. The other, called the Lugano Convention, was concluded between the EC member states and those of the European Free Trade Association, EFTA. When these conventions enter into force, Irish judgments, including as I say maintenance orders, will become enforceable in Spain and Portugal and in each of the EFTA states, that is Austria, Finland, Iceland, Norway, Sweden and Switzerland.

I have also directed that priority attention be given to the Reciprocal Enforcement of Maintenance Bill. The purpose of this Bill is to provide for the enforcement in this country of maintenance orders from other EC states and to provide a mechanism for the processing of similar applications in other EC states in so far as Irish maintenance orders are concerned. Irish maintenance orders are now recognised throughout the EC. However, a maintenance creditor still faces the difficulty of having to take legal proceedings in other EC countries to have the Irish order enforced and no arrangements exist with regard to non EC states. The proposed Bill will enable Ireland to accede to the EC and UN Maintenance Convention which will improve procedures for the recovery of maintenance payments in the EC and provide a mechanism to assist in the recovery of maintenance payments from non-EC countries.

In relation to the manner in which family law cases are dealt with in our courts I have previously mentioned in the House that the subject of family courts is at present being examined by the Law Reform Commission. As soon as the Law Reform Commission report is received the matter will be considered fully.

The designation of individual judges to specialise in one category of case would raise the question of how this could be achieved having regard to the independence of the Judiciary from the Executive and to the functions and the responsibilities that the Chief Justice and the President of the other courts have for the allocation of court business.

Proposals for alteration in the day-to-day operation of the courts' services, including the arrangements for the hearing of family law cases, as well as questions regarding training for the Judiciary, would essentially be matters for the Minister for Justice to examine in consultation, where appropriate, with the Judiciary. I will be liaising closely with my colleague, the Minister for Justice, in an endeavour to ensure that the service offered by our family courts matches to the greatest possible extent the requirements of those who need to avail of it.

I accept, of course, that the best legislative intentions will not achieve their full potential if people do not have appropriate access to legal advice. As I already have said to the House on a previous occasion, the Programme for a Partnership Government indicates that, with a view to ensuring equal access to the law, the present scheme of civil legal aid and advice will be placed on a statutory footing and that additional funding will be provided to facilitate an expansion of the scheme. I am also aware of reports made by various bodies for the improvement of the scheme and I am, indeed, in sympathy with many of the proposals made by these bodies. My concern is to secure the development and expansion of the scheme in so far as financial resources permit.

I also wish to recognise and pay tribute to the tremendous work being done by voluntary groups and agencies in the provision of counselling and mediation services which has been of great benefit to very many couples over the years. I particularly welcome the recognition in the White Paper of the value of the mediation service. The purpose of this service is to assist spouses, whose marriage has broken down, to reach a voluntary agreement about arrangements for children, property and other matters of mutual concern to both partners, without the need for court intervention.

Recently I had the pleasure of meeting with the committee and staff of the Family Mediation Service at their premises in the Irish Life Centre. The interest, dedication and compassion, so evident in all those involved in the provision of the service, is inspiring. Also, I was very heartened by the extent to which the co-ordinator and her staff, including the mediators, identified with the service.

Although I have already expressed to the members of the committee my appreciation of the work they are doing it would be appropriate to avail of this opportunity to pay public tribute to them. All have given unselfishly of their time, energy, and expertise. Their reward is the knowledge that they are contributing greatly to the development of a caring society by advancing the concept of mediation as an alternative, in appropriate cases, to litigation in situations where partners in a marriage have arrived at the painful conclusion that they should separate.

It will be all the more important in the future to have a strong family mediation service particularly in the context of the proposed referendum for the removal of the ban on divorce from our Constitution. In order to strengthen the service I intend to place it on a statutory footing.

I believe that all of the changes which I have outlined stand on their own merits irrespective of the outcome of the referendum on divorce. Nevertheless, I believe that many of the measures would help to meet the concerns of many people in relation to the introduction of divorce. It is a subject on which people have strongly held and sincere views and I hope that the debate on the matter will be marked on both sides by respect for the opinions of others. Previous public debates have tended to be bitter and divisive and marked by a vague sense of threat. I would hope that having moved on and, recognising the many legislative changes which have taken place in more recent years in the area of family law, that today's debate will be marked in particular by the absence of bitterness and that in respecting the sincerely held views of others that an overall broad consensus on the way to move forward in this area will be achieved. I greatly hope as well that the debate is based on a calm assessment of the realities which are involved, realities which for many can be very sad, in some cases resulting in a lifetime of pain and regret.

The White Paper clearly outlines the realities under existing legislation. It points out that under existing provisions in the law spouses may separate for the rest of their lives; arrangements can be made for financial and property provisions for dependent spouses and children; decisions can be made about custody of and access to children; and succession rights of spouses can be extinguished in certain circumstances. However, except in cases where a civil decree of nullity has been granted or a foreign divorce has been obtained, which is recognised here, spouses whose marriages have broken down are not free to marry again. The net issue therefore is whether, by the introduction of divorce, we should allow spouses, whose marriages have broken down, to have their marriages brought to a legal end, thus leaving them free to marry again.

Since the last referendum on divorce in 1986 the legal situation has changed dramatically and quite a body of legislation affecting the area of family law has been passed. In particular, the Judicial Separation and Family Law Act, 1989, provides for a wide range of financial and property arrangements which can be made by the courts in the event of marriage breakdown. I must recognise the important contribution of Deputy Shatter in bringing forward the 1989 Act. In addition, the Status of Children Act, 1987, removed any legal distinction between the position of children in or outside marriage. These measures recognise the realities where marriages break down and consequently there is a framework already in place if divorce were to be introduced. There is therefore a new legal context in which the issue of divorce must be addressed now and this will be augmented by the further measures which I have already outlined.

In the course of the debate I also hope that we do not lose sight of existing social realities. I refer in particular to the number of people, whose marriages have broken down, and who, in the absence of the capacity to remarry, go on to form second unions without the legal protection available to spouses.

The White Paper sets out possible approaches which might be taken to amending the Constitution so as to remove the prohibition on divorce. The Government has yet to take a view on the form of constitutional amendment to be put to the people. There are five possible amendments put forward in the White Paper. These essentially are for discussion purposes and none of them is immutable. I do not believe that at this early stage of the debate it would be either useful or appropriate for me to express any preference. I would, however, welcome views, both from inside and outside the House, on this matter. For those who do not, as a matter of principle, reject divorce outright, no matter what the circumstances, there is clearly a balance to be drawn in relation to the type of divorce regime which would be appropriate.

This morning, what I have tried to do is to open the wider debate on the many issues contained in the White Paper on Marital Breakdown and to set out the context in which the Government's proposals, in this very complex and sensitive area, need to be framed. I am confident that today's debate will be of great assistance in setting the agenda for the wider public discussion which needs to take place so that we all can make the required decisions in this area in an informed and balanced way.

Mr. Shatter

I share the Minister's wish that we should have an informed debate on this matter and that points should be made in a balanced way. However, I am somewhat shellshocked by his contribution. Unfortunately, when that is said by somebody on the Opposition benches it tends to be perceived as point scoring or in some way trying to embarrass somebody across the floor. We should not engage in point scoring on an issue such as this and I have proved that in the past in the context of the Judicial Separation and Family Law Reform Act which passed through this House with great difficulty. That Act was supported by Deputy Taylor and his colleagues in the Labour Party, the Progressive Democrats, Democratic Left — then The Workers' Party — and Independent Deputies. At one stage Fianna Fáil supported it, then opposed it. We had to politically kick them around a little as it were. That was unfortunate because it appeared that we had general agreement on the necessity for that Act. When the Fianna Fáil minority Government was defeated on a vote in this House, matters got back on the rails and the Judicial Separation and Family Law Reform Act was enacted with the support of all parties, although Fianna Fáil's support was somewhat reluctant. That Act was supported wholeheartedly by the Labour Party and I thank the Minister, Deputy Taylor, for his generous comments in that regard.

The reason I am shellshocked is that it is not a national secret, and never has been, that all the parties in this House — Fianna Fáil, the Labour Party, the Progressive Democrats and Democratic Left — have for some time, been in favour of introducing divorce legislation. We have been in favour of constitutional change, of extending to people who suffer the tragedy of a broken marriage the opportunity of a second chance. None of us has hidden underground on that issue and none of us in Fine Gael, the Labour Party or any of the smaller parties, has played politics with that issue over the years. The only party that has played politics with the issue, and has cynically exploited other people's personal tragedies, is Fianna Fáil. We were all witnesses to the cynicism of Fianna Fáil in 1986 when it ran a whispering campaign against constitutional change. Deputy Woods, the current Minister for Social Welfare, talked about Frankenstein haunting the land. The Fianna Fáil Party saw the referendum in 1986 as a means of getting at the then Fine Gael-Labour Government and to hell with the divorce issue and people's personal tragedies. If they could they were prepared to diminish the standing of that Government by contributing to the defeat of the divorce referendum. It achieved that aim in conjunction with other groups outside this House.

The White Paper on Marital Breakdown contains many worthy proposals. I do not have any particular quibble with providing legislation to allow the courts make financial provision when nullity decrees are granted. Neither have I any quibble with the idea of legislation to allow the courts, in certain circumstances, to make financial orders when recognised foreign decrees of divorce are granted. Indeed, I sought to prevail on the previous Fine Gael-Labour Coalition Government to make such provision in the debate on the Domicile and Recognition of Foreign Divorces Act. That Government was advised by the Civil Service that such a provision was unnecessary and irrelevant and, therefore, did not accept it. The Minister has told us today that he is about to do something that could have been done in 1986.

I am disappointed at the attitude displayed by the Minister — who represents the Labour and Fianna Fáil Parties — in relation to the divorce issue. The White Paper produced last autumn by the former Minister for Justice, the then Deputy Flynn, was a sad and sorry document because it did not state the Government's policy on divorce. It did not state whether people who had suffered the tragedy of a broken marriage should be given a second chance. It did not state whether that Government, if it held a divorce referendum, would campaign for change and for the provision of divorce legislation. The White Paper did not mention any of those issues. It merely told the people — and this was no surprise — that if we are to have divorce we need to hold a referendum.

Deputy Flynn then produced five alternative proposals for constitutional change. He listed five articles that could be inserted in the Constitution if we introduce divorce. He did not say whether the then Fianna Fáil-Progressive Democrat Government — which I presume he was representing — favoured any of those proposals. He did not say that if it favoured one of them it would campaign for change in the same way it campaigned for constitutional change in the Maastricht referendum. He was extraordinarily silent about all of that. The White Paper did not tell us — what everyone expected it would — the Government's policy on divorce. The Minister, Deputy Taylor, stated that the Government has yet to take a view on the form of constitutional amendment to be put to the people. The Programme for Government states that a major programme of family law reform will be introduced and I welcome that, but on the main issue of divorce it states that it will culminate in a referendum on divorce by 1994. I expected that this new Fianna Fáil-Labour Government — a Government that has told people it is committed to divorce — would tell us which of the five options, if any, it is considering putting before the people. We could then have an informed debate and Members could say whether they agree with the Government's choice or, in a coherent way, explain why further consideration should be given to a different form of wording.

We have been told there is agreement in regard to holding a referendum but it is clear that despite the weeks of negotiations between Fianna Fáil and the Labour Party, not a single member of Government from either party has any idea how they will effect constitutional change. They do not even know if they will support constitutional change. Knowing the Labour Party's background in this area and having heard previous speeches by members of that party in this House, I had hoped we would have been told by the Minister — who the Taoiseach confirmed has full responsibility for this area — which of the five proposals contained in the White Paper he favours as Minister for Equality and Law Reform. I had hoped that we would have been told which of the five he would be recommending to the Government or which of the five Government favour. That is not an unreasonable request and if he had done so the issue could have been discussed in a non-partisan way. Are we to debate all five proposals? Any decent lawyer could invent another five possible alternatives in a half an hour and the Minister is well aware of that.

If every Member in the House who contributes to this debate produced an alternative form of constitutional wording, where would that get us? I am disappointed that the Fianna Fáil-Labour Coalition Government are now adopting the attitude to the issue of divorce that in the past was adopted only by the Fianna Fáil Party. I find that extremely sad. I say this with no acrimony but it is very depressing and tens of thousands of estranged spouses listening to this debate will take a similar view. I had expected we would be told what the Government favours. I would like the Minister to clarify this matter, or perhaps he will ask one of his colleagues to do so.

If the Government selects a form of constitutional article as a possible change will it campaign in favour of change? The Programme for Government merely states that a referendum will be held, but will the Fianna Fáil and Labour Parties campaign in favour of change? Will we see any member of Fianna Fáil in the House today? This is a serious major social issue and the Minister is backed up by three of his colleagues from the Labour Party — there is not a Fianna Fáil Deputy in sight. Is the plight of couples of broken marriages, an issue that involves constitutional change, not sufficiently serious to warrant perhaps the Taoiseach remaining in the House to hear the opening of this debate? Is it not sufficiently serious to warrant a single member of the Fianna Fáil Party having sufficient interest in it to come into the House for the debate?

The Minister's comments on this issue were very disappointing. Members of this House who recognise the problems of marital breakdown should be committed to holding a divorce referendum swiftly. What is also disappointing about the Minister's speech is his failure to acknowledge or realise the total inadequacies of the paper produced by the former Minister for Justice, Deputy Flynn. I described that paper as more like a Green Paper than a White Paper. It was a Green Paper with a finished tint to it because it failed to address a wide variety of issues, some of which it appears the Minister cannot address.

First, we need family courts, but that matter appears to be outside the political competence of this Minister; it falls within the aegis of the Minister for Justice. Spouses of a broken marriage who currently find themselves before the courts are engaged in a game of judicial roulette. Some judges deal effectively, sensitively and excellently with the problems arising from marital breakdown while others deal with them very badly, with a lack of insight and sensitivity. Some members of the Judiciary often exacerbate the difficulties experienced by couples whose marriage problems come before the courts. For many years there has been acknowledgement of the need for family courts. I think I am right in saying the Minister was a member of the Oireachtas Joint Committee on Marriage Breakdown which recognised that need. I would expect, if we are to have divorce, that this Government would first make provision for the establishment of family courts, but there is no commitment to that in the White Paper.

The Minister said he acknowledges the need for people to have access to law. There is a need to provide legal aid for husbands and wives whose marriage problems have to be resolved in the courts. A number of law centres have closed their doors and are unable to provide legal advice to battered, unsupported and deserted wives who require help. People looking for legal help through the law centre system may have to wait three, four or five months, that is not good enough. There would be many additional demands on the law centres in the event of divorce being introduced and there is no indication how that matter will be dealt with.

The White Paper fails to address a series of issues that must be addressed if a divorce referendum is to succeed. The Minister and I, who were on the same side during the course of the last referendum, witnessed the manner in which fear was generated about property and inheritance rights with the result that the divorce amendment was defeated. Indeed, some weeks after the event many people wondered why they had voted against something of which they were in favour. Fear stalked the land and people were manipulated. If we are to prevent that happening again we will have to do much more than introduce legislation to provide for joint ownership of the matrimonial home. This White Paper does not address the changes required in the social welfare laws in the event of divorce being introduced. What will happen in the context of deserted wife's benefit and allowance and single parent's allowance?

I tabled a question to the Minister for Social Welfare on 16 February 1993 asking him the changes proposed in the social welfare code in relation to deserted wife's benefit, deserted wife's allowance and single parent's allowance in the event of constitutional change allowing for divorce. The reply was that the Department is looking into the matter. The day a divorce referendum is called, how many people who do not acknowledge that people should get a second chance will call meetings to put the fear of God into deserted wives, telling them if they vote for divorce they will lose their deserted wife's benefit or allowance? This matter is not addressed in the White Paper. No one even thought of it. What will happen in the context of widows' entitlements under the social welfare code, in relation to contributory and non-contributory pensions in the event of divorce being introduced? This matter must be addressed. I tabled a Dáil question on this matter to the Minister and yet again the reply stated that the Minister will look into the matter. These issues should be addressed in the White Paper.

What will happen in the context of public service pension schemes in the event of divorce being introduced? In a Dáil question on 3 November last as to what arrangements the Government proposes putting in place under these schemes to resolve difficulties that could arise in the event of the introduction of divorce, the Minister for Finance somewhat lamely replied: "the operation of the Civil and Public Service pensions schemes may fall to be reviewed in the light of any developments on the matters raised in the Paper". No consideration has been given to fundamental issues which, for human and social reasons, must be addressed prior to a referendum on divorce. For political reasons these matters must be properly addressed, otherwise they will be shamelessly exploited by those opposed to change to generate fear, as happened before.

What changes will be made in the income tax code to address the problems that will arise in the event of divorce being introduced? I raised that matter by way of a Dáil question to the Minister for Finance only two weeks ago and his Department do not have an idea of what changes are necessary. I was told it will look into the matter when the time comes. What changes will be made in the area of capital acquisitions tax? Currently, if a couple are separated and the husband dies leaving property to his wife, or the wife, having been excluded from the will, inherits one-third share of the property, as a result of the protection she is given under the Succession Act, she does not have to pay inheritance tax. If divorce is introduced here the widow will no longer be a spouse, she will be a divorced person and, therefore, will not qualify for exemptions from spouse's inheritance tax and gift tax. How will we address that matter following the introduction of divorce?

Mr. Taylor

She may not qualify to inherit at all.

Mr. Shatter

I will also address that issue. I am saying, as someone who has campaigned for change for 20 years, that this White Paper fails to address any of these issues, all of which will be exploited in the run-up to a divorce referendum by people opposed to change. Most of these people say nothing about any of these issues except when divorce referenda are held. In saying this I wish to be constructive and helpful to the Minister. The Minister should ensure that these issues are addressed. If they do not fall within the bailiwick of his Department they must be addressed by his colleagues in other Departments who did not have the wit to address them before publication of this White Paper — the people with responsibility in these areas were in Government at the time the White Paper was published.

An Ceann Comhairle

I hesitate to interrupt the Deputy merely to inform him that he has only one minute left.

Mr. Shatter

I will conclude. I felt in this debate that there was no need to spend time praising the mediation service, the marriage counsellors and everyone else. They know they have the support of the Fine Gael Party and they know our views. What the Minister said in relation to those organisations, about how impressed he is by them, and wishing them well is interesting, but it would be more impressive if additional financial allocations were made to those agencies. It would be more impressive if the Minister came forward with plans to extend the mediation service outside of Dublin. There are needs in other areas as well.

Divorce cannot be dealt with in a political vacuum. The Government has to make decisions and choices. In making those choices Fine Gael will not do what Fianna Fáil did when in Opposition. We will not make the job of Government difficult. We want the issue addressed and to see divorce being provided for people who need it.

I wish to sound a warning. The Government should not deal with this issue incompetently. It should address the issues which were not addressed in the White Paper. The Government should put in place structures such as family courts and it should tell us what form of constitutional change it believes is necessary. The Government should perhaps tell us if both the Labour Party and the Fianna Fáil Party are committed to change, and if it will campaign for change if and when a referendum is held.

Ms Keogh

I am a little bemused by what has already occurred this morning. I look at the White Paper as a framework on which we can work. I agree with Deputy Shatter that it leaves a great deal to be desired. In fairness, the Minister has expressed openness on this subject and I do not wish to be unduly critical of him. I wish we had gone a step further in relation to the White Paper. I appreciate the opportunity to discuss the paper even at this stage and I appreciate the Minister's comments in relation to my colleague, Deputy Harney, who, unfortunately, cannot be with us today.

Mr. Taylor

The Deputy's party had more input into the White Paper than mine.

Mrs. Owen

Will the Minister tell us what he finds wrong with it?

Mr. Taylor

The Deputy has not been very constructive so far.

Ms Keogh

I hope to be constructive. The Progressive Democrats moved this along as far as possible, but I will not go into the political background to it because what I really want to do is effect change. It is a bit disingenuous of Deputy Shatter to talk on the one hand about effecting change and then to be so picky about the whole thing. We should be more positive about it. I accept the political realities and the Labour Party also should accept them.

In Government we did our utmost to progress this issue. I hope the Labour Party in Government will put in as much effort as we did in bringing forward a divorce referendum. A genuine fear expressed to me by women and women's groups relates to the fact that we do not want the same mishmash, disinformation, fear and doubts we had before. We want a certainty about what will happen. I agree that there is a legal framework available to us now that was not available during the referendum. Since its foundation the Progressive Democrats has actively supported and worked for the repeal of the provision in the Constitution which provides that no law shall be enacted providing for the grant of a dissolution of marriage. Should the remainder of Article 41 be left in place? A question arises as to whether any constitutional amendment should be a simple deletion or whether there should be an insertion that the State can enact laws providing for the dissolution of marriage.

The Progressive Democrats Party is committed to far reaching constitutional reform, but even if there is to be a single issue referendum in the lifetime of this Government on divorce, the exact nature of the amendment is still a matter on which we have to proceed carefully. It would be a major mistake to insert into the Constitution a set of circumstances in which divorce can be granted. The Constitution is not the place for such provisions. The last attempt of the Fine Gael/Labour Coalition to deal with the issue by referendum was unduly complex and we suffered because of that. If simple deletion is possible having regard to Article 41.3 that would be preferable, but perhaps a new Article is necessary. I put forward the following wording for discussion:

That the State may, however, by its laws provide for the grant of a dissolution of a marriage where it is determined in accordance with such laws that such a marriage has irretrievably broken down and that such a dissolution would be just.

In the past we have seen that complexity in a referendum leads to its own problems. It would be a fundamental mistake to set out in the Constitution any condition for irretrievable breakdown, or any preconditions for divorce. The proper place for that is in statute law. The test for irretrievable breakdown should be simple and clear, where there is consent between the parties and where the children's interests are catered for. The test should be a period of non-cohabitation for two or three years. In contested cases perhaps a longer period might be appropriate, but we have to remember that contested divorce cases are damaging to the parties and to their children and the contest is usually less about marriage than about custody rights and financial matters.

There are certain aspects of the White Paper with which I wish to deal. It is fundamental to acknowledge divorce as a final solution in cases of irretrievable marriage breakdown, because marriage breakdown is a fact of life. In the past marriage breakdown has been ignored. In some cases it has been ignored in the hope that it will go away. In a more open society there should be a greater awareness of marriage breakdown, the incidence, the consequences and the resolution in so far as it is possible to resolve the problem. Marriage breakdown causes poverty and it is mainly women who bear the brunt of it.

We must take a holistic view of the tragedy of marriage breakdown. In supporting mediation and counselling to support couples who are encountering difficulties, I pay tribute to the various agencies who provide these services, particularly the voluntary agencies who do this work on a shoestring with no statutory funding. I welcome any comment of the Minister in relation to the funding of such agencies. Voluntary agencies are supported by cake sales, sales of works and so on. We should not ask any agency seriously engaged in social issues to seek funding on that basis. I do not take a simplistic view of a complex and extensive problem. Divorce is necessary to end a marriage in certain circumstances. Many thousands who have encountered irretrievable marriage breakdown have to be allowed the dignity to validate their circumstances on a legal basis. It would be a disaster to embark on a divorce referendum before the real and imagined fears of people are addressed and, more important, dealt with in a fair and equitable manner.

I should like to comment on specific issues in the White Paper and to tease out some of them, in particular, the economic reality for women resulting from marital breakdown and the difficulties encountered by those who are economically dependent on their spouses. It is not unreasonable to stress the importance of a mature approach to marriage and requiring a minimum age of 18 for those wishing to marry. A separation of the civil and religious aspects is desirable. I agree with the submission on behalf of the AIM group that a separate civil ceremony would emphasise the legal aspects of marriage. The Joint Committee on Marriage Breakdown suggested a waiting period of three months. Prior to my marriage, which was a long time ago, I had to go through a marriage guidance course. I hope it helped me and at least we are still together. I would regard a certain cooling off period as desirable. The provision of marriage preparation courses by the churches is to be commended. People should be more aware of the necessity of preparation for marriage and that point should be stressed.

I should like to turn to the area of protection and financial support. I realise there has been some improvement in terms of a greater awareness of the problem of violence against women. Last November I attended a conference on the safety of women. Unfortunately there were not many politicians in attendance. The title of the conference was a misnomer since it was concerned with violence against women. That was the first attempt to bring together all the various women's groups involved in coping with this very serious problem, which is endemic. This is much wider than the area of marital breakdown but it has to do with the attitudes that tend towards the acceptance of physical and mental cruelty shown towards women. Unfortunately, many hold the attitude that women bring this upon themselves. I realise I am speaking about the broad picture which cannot be tackled by legislation alone but must be addressed by our whole society.

This conference brought home to me the fact that attitudes towards women are reflected in legislation on marital break-down and divorce. If our society undervalues and under-rates women and their contribution, then unfortunately legislation reflects those attitudes. I accept that in the Minister's case he has a greater openness than previous Ministers for Justice have had in relation to this matter. I am critical of the whole idea of having a Department of Equality where women are seen as a disadvantaged group in society. This is not a personal criticism of the Minister but perhaps there is a mindset that women's issues are not worthy of a whole Department but rather are lumped in with a bag load of issues relating to disadvantaged and disabled groups. I hope that is not the Minister's view. I wonder whether we have an attitude permeating the whole of society and legislation that women do not count.

I should like to refer to some specific instances which I have heard raised at so many conferences, meetings and seminars involving women. Barring orders must be extended to cohabitees and other family members. This means that the Family Law (Protection of Children and Spouses) Act, 1981 must be amended. The reality of mental cruelty must be recognised and protection orders should be available independently of barring orders. The conference on the safety of women underscored the necessity of a pro-active role for the Garda in circumstances of family violence. A whole debate could be pursued on the protection of women and victims as well as on the type of society which makes those women victims. I would urge, in the strongest possible terms, adequate funding on a statutory basis for all those voluntary groups who are to the forefront in picking up the pieces of women's and children's lives. Every health board should have properly funded women's refuges. Rape Crisis Centres must be funded on a statutory basis. All of those voluntary groups who have built up skills to a professional level should have adequate funding and their role must be recognised in society and not seen as some adjunct. Civil legal aid should be available to those who have an immediate and urgent need for barring orders. This area of protection needs to be re-examined, as well as the implications of family violence and the root causes. There are many difficult questions to be answered here.

The Minister realises all too well the difficulties involved in protection, family support and maintenance. I am glad the Minister said he would give a priority to the Reciprocal Enforcement of Maintenance Bill because a huge difficulty remains in securing maintenance from defaulting spouses who have gone to live abroad.

The AIM group have made a number of points which I would like to put on record. They state that access to maintenance should be through a family court. We have already had reference to family courts. That item should be at the top of the Minister's agenda. There is no concept of family income in family law. I support the idea that this concept should replace the present classification of dependent spouse. At present courts are given very little guidance concerning the setting of maintenance awards, which means that low and variable amounts are set. The maintenance legislation should set out in detail the various factors to be taken into account — the age and earning capacity of the spouses, how earning capacities are influenced by the child minding responsibilities, duration of the marriage, contribution of the spouses to the acquisition of family assets, including non-financial contributions. We need regular reviews. The Minister is broadly in agreement with the points I am making.

Deputy Shatter stressed that there is no reference in the White Paper to the specifics in relation to social welfare, employment and taxation. That is an important area which should be pursued.

There is a number of specific points which the group have made in their submission and I am sure they have made the same submission to the Minister. Without dwelling on them all, I stress the need to take on board the points they make because they are in the front line and have the immediate responsibility and capacity to deal with problems. Obviously, we need to be led by the people who have a direct link into the problem.

Mr. Taylor

I have met them.

Ms Keogh

I should like to deal with the family home. I had the joy of being a member of the Joint Committee on Women's Rights during the last session. I would like to draw to the Minister's attention a study commissioned by that committee entitled Community of Property by Mr. Cormac Corrigan. This is not light bedtime reading but it makes very interesting and substantial reading on the whole background to the existing legal framework on ownership of the family home and property.

I would strongly support legislation which provided that family homes should be jointly owned. Such legislation should apply retrospectively. The point has already been made that joint ownership of the family home is still uncommon among older age groups and perhaps more vulnerable people in our society.

I have made a special point of drawing this report to the Minister's attention because it ranges across the entire spectrum of the ownership of property. There is a huge, difficult, legal and complex area here which needs to be examined and re-examined. I do not think the White Paper will be of any benefit whatsoever — it does not really tell us anything. We need detailed legislative proposals on this issue as a matter of urgency. In using the word "urgency", I have taken into account the complexity of the entire issue.

Mr. Taylor

Is the Deputy talking about the family home or something beyond that?

Ms Keogh

I am talking about something beyond that. There have been many long discussions on this very difficult problem. For example, people have asked if a yacht owned by a spouse, usually the husband, would be regarded as part of the chattels of the family. There are many questions on this issue which require answers. This study goes a long way towards giving these answers.

I hope I have been constructive in my remarks and that the long awaited referendum on divorce will be held in the near future. However, there is no point in having a referendum, which may enable many people to get out of the appalling circumstances in which they find themselves and perhaps validate their new relationships, if it is held in a mishmash way and there is not a concerted effort by the Government and Opposition parties to support it. The referendum needs to be backed up by an information campaign which will allay the fears of people, particularly those of women, so that there is no repeat of the unfortunate circumstances which arose both before and after the last referendum.

Mr. Gilmore

The White Paper we are now debating was published six months ago. While I appreciate that many political events have occupied the time of Members of the House in the intervening period, a matter of this importance should have been debated in the House at an earlier stage. Nevertheless, I am glad we have the opportunity to discuss it.

Every person who marries, whether in a church or in a civil ceremony hopes, and indeed expects, that the mutual love on which the marriage is based will last forever. Human relationships are complex and the experience of societies all over the world is that love can die and marriages can and do break down. The absence of provisions for divorce does not prevent the breakdown of marriage, as we have seen in this country. Indeed the entire area of human relationships is of such a complex nature that attempting to lock it into a very rigid legislative and, as happens in this country, constitutional strait jacket is a recipe for increasing the strain on marriages and relationships. There are many fine declarations in our Constitution which bear little or no relationship to reality. There is a degree of thinking in our Constitution that we need to look at. The thinking, which I suppose began with saying, "an oath is not an oath at all", has led to the situation where there is one declaratory position in the Constitution and an opposite position in reality. As I said, it is very difficult to legislate for the area of human relationships; it is an area which calls for a flexible approach to legislation, an approach which takes account of the comprehensive and wide ranging nature of the human state. In the case of marriage, such an approach needs to address not only the issue of the breakdown of marriage but also the steps whether they are in the social, economic or legislative area, which need to be taken to support marriages.

The statistics quoted in the White Paper give some indication of the scale of the problem, although many experts believe that even these statistics do not give an accurate picture of its full extent. According to the census of population, in 1986, more than 37,000 people considered themselves to be separated while, by 1990, an additional 16,000 people were receiving deserted wife's benefit. Clearly, the absence of divorce did nothing to protect the interests of these people; neither did it do anything for the 2,600 women who, during 1990, had to apply for maintenance orders or the 3,633 women who had to seek the protection of the courts through barring orders. It certainly did nothing for the children of these broken marriages.

The failure of our society to remove the constitutional prohibition on divorce is a direct result of the failure in political leadership. The prohibition on divorce could have been removed in 1986 if the then Government had shown more conviction in confronting the narrow and backward-looking groups who whipped up a totally false climate of hysteria regarding the possible consequences of divorce. It is not enough to say that we are going to have a referendum; there has to be a commitment on the part of the Government and all political parties to go out and campaign in favour of it. I have to contrast the approach taken during the divorce referendum in 1986, when it became increasingly and painfully obvious that the referendum might be defeated, and the lack of political cohesion shown at that stage, with the approach taken during the Maastricht referendum which took place only a few months ago.

Like the Minister, I believe it is important that this debate be conducted in a positive and constructive way. However, we also need to look at some of the political shoneenism which has characterised the approach to this issue. I have to draw attention, in particular, to the unprincipled stand taken by Fianna Fáil in 1986 when it was nominally neutral on the issue but saw it as an opportunity to embarrass the then Government and shamelessly joined in the campaign of fear and disinformation without any regard to the needs of those trapped in broken marriages. Like previous speakers, I also have to draw attention to the absence to date in the House of any representative of that party even to listen to the debate. I am very glad to see that we might be joined by a member of that party. I am disappointed at the absence of all Fianna Fáil Deputies from the House.

I hope that we as a society have progressed since 1986. I welcome the reforms which have been introduced. Interestingly enough, I think most of these reforms were introduced during the eighties. The Status of Children Act has removed discrimination in the law between children born inside and outside marriage. The law in relation to foreign divorces has been updated and a family mediation support which it deserves. If mediation service, albeit on a very limited basis, is in place, without the kind of financial support which it deserves. If one looks at the appendix to the White Paper one can see that the amounts given by way of grants to the voluntary mediation services are the same as those one would expect to be given to a football club for the purchase of jerseys. The grants are completely out of proportion with the needs.

Deputy Keogh referred to the submission made by the AIM Group with which I would strongly concur. A letter to me from the AIM Group pointing out the difficulties it is encountering due to a lack of funding, states:

Our premises are unsuitable for the increasing number of clients who call on us for legal information. We are often reduced to seeing people in a corridor leading to a toilet. It is unacceptable to have to be treated in such a manner, particularly as the clients are very often in a distressed condition and many have travelled long distances to see us.

Clearly, there is a need to provide continued and better financial assistance for these groups.

The Judicial Separation and Family Law Act at last recognised the reality that some marriages would break down and made provision for the formal separation of the couple and for the protection of the children. We must take one more step forward by recognising the right of those whose marriages have irretrievably broken down to re-marry. The existence of marital breakdown, combined with the absence of civil divorce, gives rise to a multitude of problems and anomalies which are in many cases compounded rather than alleviated by the partial remedies currently available — judicial separation, nullity, desertion, barring orders, etc. These problems include the growth of extra-legal family units, second families with no legal standing and so on, with corresponding problems for families in the tax and social welfare areas, legal anomalies through the recognition of foreign divorces, growing disparities between the requirements of the Roman Catholic Church and the State in respect of annulments, and so on.

Civil divorce is needed to enable partners in a broken marriage to free themselves from an intolerable situation and to give them, if they want it, a second chance. Various devices exist in the State to respond to marital breakdown but only divorce is regarded by our Constitution as objectionable in principle. The fundamental difference between divorce and legal separation is the right to re-marry.

The case for the removal of the constitutional prohibition on divorce is, among other things, a civil rights issue. I am a little concerned at the tone of the White Paper which seems to suggest that it is less than a civil rights issue. It is a civil rights issue. There will always be people to whom divorce will be morally unacceptable, but to deny everyone the right of access to divorce on the grounds that it is unacceptable to some is a denial of civil rights. A genuinely democratic society is one in which the civil and human rights of all people are respected and one which guards the rights of minorities as well as majorities. No State has a right to force a couple to live together against their will and no State has a right to penalise them if they decide to live apart.

Nor is this a religious question. It is simply a matter of deciding how best the State should regulate its Constitution and laws to deal most effectively and humanely with a major problem which is affecting tens of thousands of people. There is absolutely no contradiction between a personal moral belief in the principle that marriage is indissoluble for oneself and a belief that divorce should be available for others who do not share that view. Unfortunately, however, as in other areas of life in this country, what should be essentially a civil matter has taken on religious overtones. Our approach to marital breakdown and remarriage has often been characterised by hypocrisy and a willingness on the part of the State to turn a blind eye, particularly in the case of people who secure church annulments and then re-marry.

In November 1990 a woman who was at that stage seriously ill with cancer received a 12-month suspended jail sentence in the Circuit Criminal Court when convicted of bigamy. The woman had been originally married in a church and the second form of marriage she went through was in a registry office. Yet, as we know, hundreds of people who have the money and the influence to do so seek and secure Church annulments and then go through a second Church marriage. Although the State does not officially recognise the annulments, it turns a blind eye to these second marriages and there are no prosecutions for bigamy. The fact that in the case I have referred to the prosecution was taken under an Act of 1861 and the second marriage was performed under an Act of 1844 emphasises the urgent need to bring the legislation covering marriage up to date and into line with modern conditions.

It also makes a strong case for the introduction of a district civil element into all marriage ceremonies, an area touched on briefly in the White Paper. The vast majority of marriages in Ireland take place in church, but many people are not conscious that there is both a religious and a civil ceremony. The fact that the officiating clergyman also acts as the civil registrar blurs the distinction between the two ceremonies. In most countries when people are married in church they also go through a separate and quite distinct civil ceremony. Consideration must now be given to how this can best be done in Ireland without causing couples undue expense and inconvenience.

Each Church has a right to make whatever rules it wishes for its own religious rites of marriage and to decide that it will not accept departures from these principles by its own members. Each Church has a right to say that it will not necessarily agree to re-marry in a Church ceremony those who have secured a civil divorce, but no Church should occupy a privileged position in a democratic society and the majority Church should not have an automatic right to have its doctrines enshrined in law. The State has a duty to regulate marriage as a social institution within a society comprising different religious groups, different moral standpoints and different social practices. There should be a clear distinction between Church and State regulation of marriage. One of the most effective ways of doing this would be the introduction of distinct religious and civil ceremonies.

The publication of the White Paper last September was a significant step forward. The document contains a wealth of analysis, background material and proposals for reform, but when it was first published I expressed some disappointment that the proposals on divorce were so tentative and nervous. A White Paper should make a clear statement of Government policy and legislative intent. While this document does set out specific Government proposals for the amendment of family law in many areas, it sets out only a series of options for discussion in relation to divorce. On the key issue of divorce this is not so much a White Paper as a Green Paper. It is essentially a discussion document.

Of the options for possible constitutional amendment set out in the document, the best by far is the first, which would simply remove the constitutional prohibition on divorce and make it possible for the Oireachtas to enact laws providing for the dissolution of marriage. The Constitution should set out the broad legal and social framework within which the laws of the State should be drawn up. Some of the proposed amendments which go into great detail on the specific circumstances in which divorce could be permitted are totally inappropriate for a Constitution. We all know too well the great difficulties regarding the interpretation of the 1983 pro-life amendment. One of the options listed in the White Paper envisages writing a 22-line amendment into the Constitution dealing in great detail with the circumstances under which a divorce might be sought. Such a detailed amendment would create a legal nightmare and a constitutional quagmire and the matter would never be out of the courts. We should have enough confidence in ourselves as legislators to ask the people to agree to the removal of the constitutional prohibition on divorce and to allow us to get on with the job for which we are elected, the enactment of legislation.

I share the disappointment of previous speakers that the Minister in opening the debate did not give some indication as to the Government's preference in this area. I find it difficult to believe that the two parties in Government would have concluded a Programme for Government without having resolved the issue of which option would be adopted for the divorce referendum, particularly having regard to the history of the last divorce referendum.

The option is critical. There are two distinct approaches. One would remove the constitutional ban and leave the detail of legislation to the Oireachtas. The second approach, which is enshrined in options 2, 3, 4 and 5, would write into the Constitution a set of restrictions on the availability of divorce. The detail will have to be hammered out somewhere. We have a straight choice. The detail can either be worked out here in the democratically elected institutions of Parliament or they will be worked out by the Judiciary in the courts. I would favour the approach which would simply lift the constitutional ban on divorce and allow the Legislature to get on with its job.

Having regard to the experience in 1986, there might well be a case for the legislation dealing with divorce to be introduced and debated in this House in advance of a referendum. In 1986 there was a degree of disinformation and speculation as to what wild forms of excesses the Oireachtas would rise to if the constitutional ban on divorce were lifted. In this instance the Government might introduce the legislation in advance for debate in the Dáil and bring it to the stage where the question of constitutional change would be put to the people. In voting in a constitutional referendum the people would have before them the legislative intent of the Government and the view taken on it in this House. Despite the increasing incidence of marital breakdown, we must not forget that the vast majority of marriages survive. Some regard has to be had to the circumstances which lead to the break-down of marriage.

I must express some disappointment that the White Paper did not appear to address the factors which contribute to a breakdown of marriage. There is no doubt in my mind that the increasing levels of unemployment are contributing to marital strain and to the breakdown of marriages. It begins with somebody losing a job — it might be one of two jobs or it might be the sole job in the household. That leads to financial strain and helps to accentuate the kind of difficulties that lead to marital breakdown.

The problem of housing is something else which contributes to marital break-down. It is a bit ironic that the only references to housing in the White Paper are the indications for housing demand, for arrangements for separation and divorce and so on. There is no reference at all to the effect of the housing shortage, particularly on young couples who are trying to start out in their marriages and find themselves squashed into grossly overcrowded situations, perhaps living with in-laws or living in unsuitable private accommodation which they cannot afford. It is a very bad start to any marriage to be in unsuitable housing conditions.

In addition to addressing the consequences of marital breakdown we need to address the causes of marital break-down and endeavour, in so far as it is possible, to reduce them to the maximum extent possible. That, perhaps, is an area to which the White Paper did not devote sufficient attention.

Minister for Justice (Mrs. Geoghegan-Quinn)

The White Paper on Marital Breakdown was prepared in my Department. As the House will be aware, responsibility for the reform of family law has since been transferred to the newly established Department of Equality and Law Reform. This, in turn, meant that a number of officials had to be transferred from my Department to the new Department and I take this opportunity to express my appreciation of the work they did in my Department. I wish them well in their new assignments.

When the White Paper was being prepared, it set out to mesh in with a programme of family law reform to which the Government is committed. When published it was broadly welcomed. If there was criticism, that criticism was to the effect that the document was more in the nature of a Green Paper, especially because the Government did not opt for one particular wording which might be put to the people in a divorce referendum.

Its bona fides as a White Paper came under attack. What nonsense that is. Is a document which, among other things, sets out 20 proposals and contains the detailed scheme of two Bills in some way not a proper White Paper?

Of course it is a White Paper, but it is a White Paper drafted with some openness and, more important, crafted with an awareness of what has happened before in relation to this topic. In the past, a false and transient consensus grew around this issue. However, in the end, we did not reach a point where we could honestly say that we have now a corpus of legislation related to the family and to marriage which is just, which is responsive to the realities of the way we live now. So it was vital that this White Paper should lay out all the options so that we can get it right this time.

Deputy Shatter of Fine Gael criticised the White Paper because of the inclusion of possible wordings for a divorce referendum. It was a largely negative and unhelpful contribution and it would have been extremely helpful from the point of view of Minister Taylor and the Government if he had indicated what his own personal choice or that of his party might be in a divorce referendum. That is why we are having this debate and that kind of contribution would have been helpful.

I particularly welcome the fact that the White Paper sets out the situation where we now have a highly-developed system of family law containing an extensive range of sophisticated and up-to-date provisions to cope with the complex issues which can arise in the family law area. The White Paper, of course, goes on to recognise that further reforms are desirable and sets out proposals for change.

It is instructive to look at the range of legislative change put in place since the Oireachtas Joint Committee reported. The main developments range from new laws on separation to a corpus of new laws concerning children and new welfare payment arrangements for single parent families. It is particularly striking that children have been the focus of special attention by way of new laws on the status of children born outside marriage, the care of children, the abduction of children and the adoption of children. Welcome also is the fact that last year Ireland was in a position to ratify the UN Convention on the Rights of the Child. All of these measures are, in one form or another, related to the subject of marriage breakdown.

I should like to take this opportunity to refer in particular to the success of our child abduction laws if only because they, perhaps, have not received the attention that other important areas of new family law have received. The Child Abduction and Enforcement of Custody Orders Act, 1991 deals with the problems that arise when a parent abducts his child across frontiers in defiance of a court order or against the wishes of the other parent. Regrettably, with greater mobility and increasing levels of marital breakdown this is a growing problem. The level of human misery to which it can give rise in individual cases is enormous.

The 1991 Act gave the force of law here to two international conventions designed to deal with this problem. Each convention provides for the establishment of a central authority which acts as a point of contact for aggrieved parents and sets in place measures to be taken to arrange for the return of children.

In Ireland at present the Minister for Justice acts as a central authority for the purposes of both conventions and I discharge these duties through officials of my Department. Recently we compiled statistics on the operation of the conventions for the period between their coming into force here on 1 October 1991 and 31 December last year. I think that this debate is an appropriate opportunity to reveal to the House what those statistics indicate.

During the period in question there were 42 cases involving 80 children: 15 of those cases involved 25 children who had been removed to the State and a further 27 cases involved 55 children who had been removed from the State. In relation to the 15 cases where children had been removed to the State the situation at the end of December last was that in four cases the court ordered the return of the children; in two the court ordered the return of the children but appeals were pending; in two cases the court refused to order the return of the children; one application was withdrawn; two applications were found to be outside the scope of the conventions; and four cases were pending.

In relation to the 27 cases where children were removed from the State the position at the end of last year was that in 14 cases the court ordered the return of the children; ten of the applications were withdrawn; and three cases were pending.

There are two points which I might usefully make about these statistics: first, in many cases where applications were withdrawn this arose because the children were returned voluntarily and, secondly, the bulk of the cases arise between here and the UK.

I have gone into this matter in some considerable detail, partly because this has been the first available opportunity to inform the House of how well the legislation is working but also I think that these details highlight how valuable and effective individual initiatives in the area of family law can prove to be in practice.

It is in this context of effective and practical initiatives that I particularly welcome the inclusion in the White Paper of the Scheme of Family Law (No. 1) Bill which deals with a range of measures in the area of family law. While some of these might not appear dramatic of themselves they can, however, make significant differences to the plight in which some individuals find themselves. The scheme of that Bill proposes to give the Circuit Court jurisdiction in nullity cases and enable comprehensive financial and property orders to be made in such cases. It also includes provisions in relation to financial and property orders where decrees have been obtained abroad; declarations of marital status and improved maintenance arrangements. Measures of this kind form part of what inevitably must be the continuous process of ensuring appropriate remedies in the area of family law.

Some Deputies will no doubt be aware of the difficulties a dependent spouse can also face where the spouse obliged to pay maintenance resides in another country. We are already parties to international arrangements designed to deal with this situation but I am glad to see that the situation will be further improved when legislation that is referred to in the White Paper will allow Ireland to ratify a new convention aimed at facilitating better the enforcement of maintenance payments throughout the EC as well as accede to a UN convention both of which conventions would require the setting up of a central authority system, not unlike the central authority system for dealing with the abduction of children, to assist people in obtaining maintenance on a worldwide basis.

I am particularly pleased that legislation on the joint ownership of the family home had been brought to an advanced stage within my Department before responsibility for this matter was transferred to the Department of Equality and Law Reform.

While responsibility for family law has been transferred to the Department of Equality and Law Reform, I do, as Minister for Justice, retain some official responsibilities which have a bearing on that area. In that connection, I am happy to inform the House that a new Garda unit has been established in the Dublin metropolitan area in recent days in an effort to ensure consistency in the investigation of cases of violence against women and child abuse and to enhance the dialogue between the Garda and key social agencies in this field. The unit — staffed by a sergeant and three gardaí — will be involved in the development of policy as well as overviewing such investigations in the Dublin metropolitan area. The question of extending the unit's mandate outside the Dublin area will be considered in due course.

Some Members were present at a conference on the safety of women which was held under the auspices of my Department last autumn. As a follow up to that conference a further one dealing with this issue is to be held next July at the Garda College at Templemore.

In relation to reform of the criminal law, the White Paper outlines positive developments brought about by the Criminal Law (Rape) (Amendment) Act, 1990, and the Criminal Evidence Act, 1991. In addition, the Criminal Justice Bill, 1993, which contains a number of significant victim oriented measures, passed all stages in the Seanad last night and will shortly become law.

Let me sum up what I have been saying in a very simple way. When it comes to protecting and supporting spouses in marital situations in which violence and injustice are involved, we are beginning to get it right, but we have, in recent times, made great strides. Now it is time to face another challenge.

The Programme for a Partnership Government commits us to a major programme of family law reform, culminating in a referendum on divorce by 1994. That referendum will allow the nation to decide whether in certain circumstances spouses whose marriages have broken down should have those marriages brought to a legal end and so leave them free to marry again. It is a simple question: simple, and agonizing; simple, and threatening; simple, and an opportunity to prove that we can debate issues which touch on relationships, religion, standards and lifestyles in a way which allows us to differ without enmity.

Society has changed utterly in the 50 years since the prohibition on divorce was included in Bunreacht na hÉireann, society has substantially changed since then. We do not live the way our grandparents did. Let me make it very clear, many of us uphold many of the beliefs our grandparents upheld but still we do not live the way they did. A multitude of differences has taken place, from life expectancy to mobility. It is not just that we live differently from the way our grandparents lived, we live differently from the way we lived until relatively recently.

Let me be very personal here. I cannot imagine that 17 or 18 years ago — I have been in this House 18 years now — I would have told such personal truths as I told Una Claffey in a book out this week, nor, I imagine, would many of the other Dáil Deputies who figure in that book. We all talked about triumphs and disasters, joys and pressures — and about problems challenging our marriages. I am quoted in that book as saying that we all hope that we are married to our best friend. If we are lucky, we are married to our best friend. If we are unlucky, at a particular stage, we realise that we are very definitely not married to our best friend. At that point, the choices are painful beyond expectation.

The choices involve a relinquishing of a personal dream. They involve potential damage to children, whichever choice is made. But we must not, in the debate on this issue, deal with those choices in exclusively negative terms.

When a couple reaches the point at which a marriage no longer exists except in law, it is important to remember that although the two people are no longer a couple, they are individuals with huge individual potential — potential to contribute to society, to community, to children and, perhaps, to a second partnership and a second family. It is that potential we must seek to potentiate. Our legal provisions must never simply seek to mop up what goes wrong; they must seek to empower and enable. Law should control criminal activity. It should never be used to constrain potential or put a limit to human happiness.

As the White Paper points out, under existing legal provisions spouses may separate for the rest of their lives; arrangements can be made for financial and property provisions for dependent spouses and children; decisions can be made about custody and access arrangements for children, and, in certain circumstances, succession rights of spouses can be extinguished. But it is not correct to suggest, particularly in the light of the provisions in relation to judicial separation, that we have now divorce in all but name. Except in cases where a civil decree of nullity has been granted, or a foreign divorce has been obtained which is recognised here, spouses whose marriages have broken down are not free to marry again.

In holding a further referendum next year, there are two points that we have to be particularly mindful of. First, the concerns which led people to reject the proposal in 1986 need to be comprehensively addressed. Second, if the people were to again reject proposals to allow divorce then I believe that it is reasonable to predict that it would be a very long time indeed before the matter is put before them again. It is in that context that I believe that the approach in having a lengthy public debate is the correct one and that the White Paper can provide the focus for such a debate to be wideranging and informed. Equally, the Government's approach in putting in place various legislative measures before the referendum takes place is a sensible one. It is also helpful that the White Paper sets out in considerable detail the type of legislation which could be put in place to deal with matters such as financial and property arrangements should the Constitution be amended.

The White Paper does not gloss over the fact that there remains a difficulty in at least one area, namely, loss of pension following divorce. A former spouse — who is no longer a widow or widower — is without entitlement under the other's pension scheme. The problem does not, of course, arise following a judicial separation because the wife, say, still remains the widow for the purposes of a widow's pension scheme. The paper is frank in stating in effect that a complete solution of the pension problem is not possible and that it has eluded our neighbouring jurisdiction. An example of the problem is that a former wife, who still may be responsible for looking after young children or whose age is against her, is unlikely to be able to establish herself in pensionable employment, having sacrificed her own career many years ago to bring up a family. The problem grows more acute as the age of divorcing couples increases and the problem is further accentuated by the trend towards early retirement.

Loss of pension rights on divorce, should divorce be introduced here, is an area for particular attention because in reality pension rights may be the parties' second most valuable asset after the matrimonial home. The parties themselves may initially have other immediate concerns and in the stress which marital breakdown imposes they will principally be concerned with issues relating to the children and the future of the matrimonial home. However, on breakdown a lack of resources to compensate fully for loss of pension rights is almost inevitable. A pension cannot simply be withdrawn as cash but this should not be a reason for ignoring the problem. The solution offered by the White Paper appears to be the best that is possible at this stage. It offers a good degree of discretion to the courts in the making of financial and property orders, though much will depend on the information about the parties' finances that is made available to the courts.

On dealing with a claim for financial support, the White Paper proposes that one of the factors which the court must consider is the value to each of the parties to the marriage of any benefit — for example, a pension — which by reason of divorce that party will lose a chance of acquiring. The court may, where substantial property, real or personal, is available redistribute that property in a way which would compensate for loss of pension rights. The court would also be empowered to make lump sum orders — which could be used to acquire an annuity in favour of the dependent spouse — and in making orders for financial relief the court will be able to have those orders secured in a way which could continue after the death of the debtor spouse. Of importance, it seems to me, is the fact that the court, if satisfied that particular hardship may result, for example, where the couple are not in a position to take up employment of a pensionable nature and have acquired no occupation rights in their own right, may refuse to grant a divorce decree.

One other related problem area which the White Paper tackles in a way which may also help to allay people's concern is that of succession rights on divorce. Again, depending on the circumstances of the divorced couple, the problem can vary. The fact remains that in the case of divorce, succession rights must end automatically, and — rightly, I think — the paper points out the impracticability of avoiding that by, say, withdrawing rights from a second or subsequent spouse. The solution proposed by the paper, and it would appear to be the most reasonable way of dealing with the problem, is to provide that where the court has not for any reason succeeded in making adequate provision for a dependent party up to the time of the death of the other party and that other party has not remarried, it may make an order for provision to be made for that party out of the deceased's estate.

The White Paper does not underestimate the problems associated with pension and succession rights. It very responsibly pinpoints the difficulties and sets down solutions which have been worked out in the form of heads of legislation. That clarity will help the debate over the next year, because it helps if we are all talking about the same real issues. Otherwise, what will ensue is a brisk exchange of prejudices and we have had rather too much of that.

The actual form of an amendment to be put before the people will, of course, be crucial to its chances of being accepted or rejected by the people. Indeed, the question: "Would you favour the introduction of divorce here?" is in many ways unreal without a definition of the circumstances in which divorce would be allowed. I am aware that when the White Paper was published there was some criticism of the fact that the Government did not express a preference for any particular form of amendment. There was a simple and valid explanation for that approach. We wanted to encourage as wide as possible a public debate on this matter before coming to a view on the most appropriate wording to be put before the people. While that responsibility will ultimately fall on the Government I believe that to have expressed a preference for one option at the stage of publication would have pre-empted that debate and done so in a way that would have damaged the chances of any amendment eventually proving acceptable. If we should have learned anything from what happened in 1986 it is that people come to their own views on the merits of such issues and that they will not be rushed into accepting a particular proposal simply on the say so of the Government of the day.

The White Paper sets out fairly and comprehensively the advantages and disadvantages associated with each of the example amendments to the Constitution which it sets out. Each has both pluses and minuses and that will be inevitably true of the final amendment which emerges. It would be a recipe for rejection of any such amendment to pretend otherwise.

Nevertheless, we as a society have to face up to the realities of modern living. Many of us will be aware of tragic cases where people who were parties to a disastrous marriage which ended long ago find themselves in second unions and deeply regret on their own behalf and that of the children of that union the fact that they are not allowed to remarry. It is often argued that hard cases make bad law but it may equally be argued that it is a bad law which cannot deal with hard cases. As against that, there is a genuine concern about the effects on society in general of the introduction of divorce.

There are clearly competing issues involved which cannot be fully reconciled. At the end of the day it is an issue on which the people will ultimately decide. The approach which the Government must take has to combine common sense and compassion in dealing with modern social realities while at the same time respecting our traditions and people's genuinely held beliefs. No one should underestimate the complexity which that involves but there is a duty on the Government — and ultimately the people — to face up to these issues and to determine as best we can how they are to be addressed. I have no doubt that today's debate will make a significant contribution to that process.

Mrs. T. Ahearn

I came into the House full of enthusiasm to hear the views of the Minister with responsibility for the newly established Department which has just begun work on a major programme of family law reform. I awaited his views with interest but, unfortunately, not only was I disappointed, I was totally stunned by his contribution. Although he spoke for 20 minutes I still do not know his intentions or — more importantly — his views. His contribution was merely factual in regard to the kind of legislation which he intends to introduce. Yet on the major issue, divorce, which should have been discussed we never knew where Fianna Fáil stood and we do not know where the Labour Party stands. The Minister failed to take any initiatives or an independent stand and did not show leadership in pointing out where his party stands on this major issue. Worse than that, he did not deal with the serious problems of how the social welfare laws will deal with divorce and public service pensions and how the income tax code will apply. He did not say how capital acquisition tax would be changed. I am deeply disappointed.

The Minister admitted that if it had not been for the initiative taken by Deputy Harney, we might not have had even a one day debate on the subject. I had tremendous confidence in the new Minister and the hopes of many people will rest on his decisions. He told us that there were no magic solutions to the problem, we know that and we never asked for a magic solution. That is why we have been debating the matter for over 20 years. However, there are ways and means of trying to cope with this very serious problem, a social tragedy, and it is very disappointing that we do not know the Minister's views on this very important issue.

The Minister asked for a positive and constructive debate. I am glad that our spokesman, Deputy Shatter, assured the Minister that the Fine Gael contribution will be constructive at all times on condition that the Government does the right thing.

Mr. Taylor

Deputy Shatter was not very constructive this morning.

Mrs. T. Ahearn

At least at this stage we know the Fine Gael stand and that of the Progressive Democrats and the Democratic Left. As well as not knowing the Government's approach we do not know Fianna Fáil's intentions or where the Labour Party stands. Where will the division and divisiveness emerge? From the Government benches? I hope not because it has a duty to lead on this issue on which the people have been crying out for leadership over the last 20 years. I regret that the Minister for Justice did not remain in the House because she made a very unfortunate remark on which I should like to comment. She applied the word "negative" to Deputy Shatter's contribution. On reconsideration, I believe she will regret that remark. Deputy Shatter is a member of my party but, even if he was not, I believe, like the vast majority of Members of this House and indeed the vast majority of people outside it, that he has devoted more time, personal commitment, passion and talent to the problem of marital breakdown than anyone else. It is very sad that, from a political point of view, the Minister for Justice said his view of marriage breakdown was negative. Indeed, Deputy Shatter pointed out very clearly that in any area regarding which he had doubts and questions in the White Paper on Marital Breakdown he was making constructive rather than political remarks. We are all very grateful that the Minister acknowledged Deputy Shatter's contribution in this area over the past number of years——

Mr. Taylor

Deputy Shatter did not make his views known on the various issues.

Mrs. T. Ahearn

I am amazed that the Minister does not know Deputy Shatter's views on this very important issue.

Ms. Burton

Tell us his views, he just criticises.

Mrs. T. Ahearn

Deputy Shatter reiterated his views over and over again in regard to this issue and if we had got constructive support from Opposition parties, when we were in Government, we would not be debating this issue yet again today.

The publication of the White Paper on Marital Breakdown is a disappointing response to an enormous human tragedy and a poor attempt to meet the aspirations and hopes of those locked in failed marriages. It is a failure in extending a compassionate and considerate approach to numerous single parent families struggling to survive. It fails to make adequate provision to protect marriages and it fails to respond clearly, in a realistic and human way, to cases where marriages have irretrievably broken down. I look upon it as a lost opportunity to meet honestly and openly the most serious and longest ignored problem — the break-down of marriages. I pity those who waited patiently and anxiously for the Government's response because, for numerous individuals, it was to be their beacon for hope for the future. It was to be their exit to freedom from a doomed, desolate and non-existent marriage. This surely should — and could — have been a historic opportunity to at last get to grips with this very serious social issue which, for many years, Fianna Fáil either ignored or exploited for its own political ends.

It is scarcely believable that such a vague and non-committal White Paper could be presented by any Government on such a serious social tragedy which has been crying out for years for a commonsense and human reaction. The price being paid for this disgraceful and sinful neglect by Fianna Fáil in Government is so great that it cannot ever really be measured in social or economic terms. The break-up of a marriage is a very personal and turbulent event. However, as a society, we have allowed the dissolution of marriages to be governed solely by the courts which are judgmental, secretive and expensive. The guidance available to assist couples towards making the right decision during what must be the greatest crisis of their lives is not adequate. When I say "not adequate" I am not in any way referring to those who provide the family mediation services, whose caring and knowledgeable attitude to families is of an excellent standard. I have heard nothing but the highest praise of them from people who have had occasion to avail of their services. However, the waiting list of those people applying for such assistance has grown out of all proportion. There are simply not sufficient resources provided to allow couples nationwide to be helped, counselled and guided through this painful process. I speak as a rural Deputy. I know of the inadequacy of such services to people in country towns, rural areas generally, when their marriages break down. Sadly, this is an area which has been neglected by many groups who have examined the services that should be available in such circumstances.

I urge the Government to give active, speedy consideration to providing the necessary funds so that this mediation service can be extended, particularly to rural areas. Arising from this lack of help, the shame and blame — sadly which can poison family relationships during marriage breakdown — often cause such disastrous consequences that some people never succeed in piecing their lives together again. This has been a result of the pussy-footing which has always been the trademark of Fianna Fáil, illustrated more obviously than ever in this White Paper.

The rate of marital breakdown is impossible to quantify because there are no accurate statistics available but at least 47,000 people in this State have broken marriages or legal separations, according to the 1991 labour force survey. We all realise that that figure is an under-estimation because many couples choose not to — or perhaps cannot afford to — go through the hassle and expense of seeking a legal separation. Added to that grim statistic are the numerous couples who share nothing in their respective lives, have no semblance of a relationship but who merely continue to live under the same roof, in many cases, for the sake of the children.

Whatever doubts we may have about the precise number of marriage breakdowns there can be no doubt about the extent of the heartbreak, pain and suffering resulting when the dream of life together is shattered. In the majority of cases the consequences are horrific despair, isolation and desolation, enormous insecurity, feelings of failure and, worst of all, poverty and suffering in an extraordinary battle even to survive mentally, emotionally, physically and indeed economically.

The White Paper under discussion today is more outstanding in its omissions than in its contents, in all the unanswered questions rather than in the commitments given. Although the Government recognises that it must be concerned to ensure that, where marriages break down, there is a proper response in our laws and social policies, this entire document of 216 pages fails to enunciate their response.

The Government failed to address two major issues in this White Paper. The first is whether it recognises the need for divorce and favours a constitutional change; the second is the form of constitutional amendment it believes necessary, or the date on which it would hold a referendum. None of those issues was honestly or directly addressed. Yet the Government took time to point out the many facts already known. Surely we all realised before publication of this White Paper that if divorce is to be introduced into this State — to allow victims of broken marriages to remarry — a constitutional referendum is necessary? That is not news to anybody. Neither was it necessary to explain the many varieties of constitutional formulae which could be produced to replace the current prohibition on divorce. The hedging continues when it comes to the Government giving a commitment on when a referendum might be held. Once again, the Government put it on the long finger, using the usual escape route, contending that first a full debate on the complex issues involved must be allowed. I agree with that. It was mentioned that a referendum would be held in 1993, in 1994; we have heard it all before. The issue has been debated over the past 20 years. There is no point in prolonging it. We can never engage in a worthwhile debate until we know where the Government stands on the issue. The White Paper avoided stating the Government's own view on divorce, I believe intentionally.

It is important to reiterate that our primary aim at all times must be to support the institution of marriage. In so doing we must provide the necessary back-up services and resources which will help the protection and stability of marriages.

The most serious issues affecting our country are unemployment and lack of housing which are, in turn, the cornerstone for marriage survival. I was glad to note that Deputy Gilmore also concentrated on this. Marriage survival is not only about mediation or legal aid; it is about having the necessary, basic things in order to survive in life, without having a job and, in turn, having a life. When those two basic needs go it is then that marriages are threatened. Nothing attacks a marriage more forcibly than lack of a job, the lack of human dignity, not going out to work and earning a decent income. Many marriage breakdowns can be traced to the disappearance of these basic needs. Yet the Government, even in the most recent budget, did nothing to protect jobs or enhance the potential of job creation. The social consequences, the price that has to be paid for this lack of work and commitment to employment, are astronomical.

Housing is a basic requirement and cornerstone for happy marriages and marital stability. The present housing crisis is doing untold damage to what would otherwise be secure and lasting marriages. Any Government committed to the protection of marriage must also be committed to the provision of employment and adequate housing. No legislation, no back-up services, can compensate for the security of a job and family home.

When we discuss the question of divorce and marital breakdown we properly discuss the issue of property. However, we must realise that marriage breakdown in the case of the vast majority of people occurs without their having any property, people who are dependent on the State for an income and a home. All public representatives witness the misery such people experience through the lack of housing available to those who want to separate to begin a new life, to get away from one of misery and punishment. It is sad that none of us at our weekly clinics can offer them any hope. Yet in many such cases we might feel they and their children would have a good life if they had even the most basic requirement of a home.

Couples deserve a decent chance to make a success of their lives together. They are totally at a disadvantage if they suffer the consequences of unemployment and bad accommodation. Therefore, any proposals to deal with marriage breakdown must recognise and incorporate the importance of employment and housing to stable marriages. As Deputy Gilmore pointed out — and I agree with him — neither the White Paper, nor the Minister for Equality and Law Reform or Minister for Justice concentrated on those issues vital to the protection and survival of marriages.

I accept that some proposals contained in the White Paper are good and welcome, such as raising the marriage age to 18, providing for a statutory waiting period and replacing the present registration arrangements with a universal civil registration system, recommended in the second report of the Commission on the Status of Women. It recommended the importance of distinguishing between Church and civil marriages. We must remember that often many couples, preoccupied with preparations for the Church wedding, are unaware of the legal significance of marriage. I support the proposal of the Commission on the Status of Women that a civil registrar should attend Church marriage ceremonies to carry out a separate civil ceremony. That is particularly important for women who should understand the legal implications of marriage since, unfortunately, it is they who are most likely to end up in circumstances of economic dependency. This White Paper only committed the Government to a review rather than outlining any definite proposals in this area.

Family violence is not only a personal issue; it is a problem which must be tackled by society in general. Unfortunately, it is a problem the Government has ignored which can and will only be addressed by strong legal protection and active policing.

The White Paper reiterates the Government's proposals to introduce legislation giving each spouse a statutory entitlement to an equal share in the ownership of the family home. This legislation has been promised for a long time but has not yet been introduced despite the fact that the Commission on the Status of Women, even in its first report to Government in April 1991, included this as one of its recommendations.

A number of voluntary agencies provide marriage counselling and mediation services for couples encountering difficulties in their marriages. The volume of these services must be publicly recognised and their contribution admired. I welcome the proposal to include mediation as an integral part of the legal process. However, it is disgraceful that these groups, including AIM, do not receive proper funding. Their record of work in the area of family law merits recognition from the Minister in the way of funding. It is unacceptable that they still have inadequate accommodation and depend entirely on grants given on an on-off basis. I understand that recently the Minister met representatives of AIM when he complimented and congratulated them on their great work but gave no commitment in relation to funding.

They are great people and we admire and commend the work they do but words are not enough. We must provide funding so that they can carry out their work in suitable accommodation. The people who avail of this service very often are distressed and they deserve to be met in an atmosphere suitable to the need for privacy. It must add to their distress and to the burden of those trying to provide a good service when they cannot be assured of adequate or suitable accommodation. I appeal to the Minister to further consider the request by AIM for proper and adequate funding.

Sadly, it is clear that this review and the proposed changes show no evidence of a Government willing to face up to a serious and growing social problem of huge dimensions which, tragically and painfully, touches the lives of tens of thousands of people. It is a poor attempt to give an appearance of concern and care to those for whom marriage was unsuccessful and who find themselves in the illogical predicament of having no way out or hope to start a new life again.

The reality of marriage breakdown cannot and must not be ignored any longer. The reality of couples in new relationships must be recognised and faced up to. We, as legislators, and in particular the Minister for Equality and Law Reform, elected by the people have a duty to provide leadership and provide for those who deserve a second chance and thereby increase the stability of family life in our society.

I am glad, as I said, that the document recognises positively that the Fine Gael Judicial Separation and Family Law Reform Act, 1989 contains within it most of the necessary measures to protect the welfare of children; the financial, property and succession rights of children and dependent spouses, mainly wives, when marriages fail. It is just as well that these provisions were made by Fine Gael because had they been left to the producers and authors of the document under discussion today little or no progress would have been made and no provisions or protections provided.

I waited with interest to listen to the response of the Labour Party to this document. I understand that, as a party, it is committed to divorce but it must seriously question its partner's intentions. If it is honest, it will agree that Fianna Fáil does not deserve, on its record, to be taken seriously on this issue. The Programme for a Partnership Government does not elaborate to the extent desirable on its views and commitments on marital breakdown.

Worse still, as I said at the outset, we are not sure, and this is obvious from the Minister's statement today, that both parties agree on a united approach. Sadly, this gives little hope to anyone that this issue will be given the priority it deserves. I hope, however, that this White Paper, despite its faults and our misgivings, will result in legislative action. Too many reports are left to gather dust and grow out of date. The Government must be more forthcoming in indicating its priorities in the area of law reform regardless of whether a referendum is planned and which necessary law reforms will precede it. The Minister must be open and honest about the Government's intentions and indicate a timetable for the legislation and action that it will produce to cater for this most serious and growing social problem of marriage breakdown.

I thank you, a Cheann Comhairle, for your generosity in relation to time.

Minister of State at the Department of Social Welfare (Ms Burton)

I very much welcome the opportunity for this House to debate the White Paper on Marital Breakdown which was published by the then Government in September 1992.

At the outset of the debate I would like to say that I hope that the way in which marital breakdown is handled by our legal system may move away from the traditional adversarial contest between spouses, and move towards a more agreed and mediated approach. In particular, I believe that it is absolutely essential that mediation and counselling be used where there are dependent children of the marriage. Sad and all as disputes are between adults in a marriage break-up, the dependent children of the marriage and their interests and welfare must be a priority in any arrangements between the partners.

The ending of any relationship is an occasion of sadness and pain, especially where the relationship has begun in optimism and love and has involved a substantial sharing of both partners lives with each other. The task of the law should be to try to minimise that sadness and pain and to enable both partners to agree, if at all possible, on the terms on which they will part.

A solution to which both partners can agree and which will enable them both to get on with the rest of their lives will be much more effective and will produce much less unhappiness than a solution imposed by order of the judge of the Circuit Family Court or the High Court. This is not to say that judicial remedies are not often appropriate, rather it is to say that every effort should be made to find an agreed basis for dealing with the breakdown of a marriage. I am dismayed at the cost which can be incurred in legal proceedings relating to marital separations. I would be most anxious that the introduction of divorce should not become a bonanza for the legal profession.

There are many progressive and valuable features of the Judicial Separation and Family Law Reform Act, 1989. Sections 5 and 6 of that Act provide that the solicitors for the parties to a judicial separation action shall discuss with their clients the possibility of reconciliation or mediation and shall give their clients information which would enable them to get in touch with agencies that would be qualified to help in this process. There is a similar proposal in the scheme of a Family Law (No. 2) Bill in the White Paper which would have effect if divorce were to be introduced.

It is very important to acknowledge the most important and professional work which has been done under the auspices of the Family Mediation Service which was established in 1986 in order to assist spouses whose marriages have broken down to reach voluntary agreement about arrangements for children, property, the family home, maintenance and succession rights, without the need for court intervention. The Family Mediation Service now operates under the auspices of the Department of Equality and Law Reform and in the 1993 Estimates there is an increase of 7 per cent in the funding for the service.

However, the Minister for Equality and Law Reform has recently announced his intention to strengthen the service, in particular, by putting it on a statutory basis.

I would also like to acknowledge the very valuable role played by voluntary groups and agencies in providing much-needed counselling and mediation services.

The White Paper offers a comprehensive survey of family law and outlines very many of the issues which arise in relation to the challenge of dealing with marital breakdown and in working towards a referendum on divorce in 1994. However, the Government does not regard the White Paper as being the last word on all of those issues, and very much welcomes contributions and comments from all sides of the House and from the public and any interested parties.

Indeed, as far as this House is concerned, the most careful consideration will be given to all views expressed in today's debate before any final decisions are taken in relation to the shape of the Government's proposals on divorce.

As far as the arrangements for the referendum are concerned the White Paper must now be read in the light of the Programme for Government. The White Paper itself did not set out a timetable for the referendum on divorce.

However, this has now been supplemented by the undertaking in the Programme for Government that the referendum will be held in 1994, and my colleague, the Minister for Equality and Law Reform, Deputy Taylor, has indicated his intention to enact the necessary legislation this year on the family home and reform of family law so that the referendum can take place in early 1994.

It should also be said that the White Paper did not express a final view in relation to the wording of the divorce referendum or the precise grounds on which divorce would be made available and these are matters which will be carefully considered by the Minister for Equality and Law Reform in the coming months. I would very much hope that it would be possible to achieve an all party approach to these issues and to the other issues arising in connection with the divorce referendum. In an issue such as this the highest degree of cross-party consensus is most desirable and it is worth recalling as we now begin the process of moving towards a divorce referendum in 1994 that the last referendum was preceded by a cross-party study of marital breakdown.

The report of the Oireachtas Joint Committee on Marriage Breakdown was published in March 1985 and provided a most useful agenda for reform in the family law area since then. That committee included the current Ministers for Justice and Social Welfare and Deputies Rory O'Hanlon, Mary Harney and Alan Shatter. It would be appropriate to pay tribute to the work of the committee and its members in making progress towards reform of family law in Ireland.

The committee recognised in 1985 the need for legislation to deal with marital breakdown, including the need to put to a referendum the option of making divorce available. Unfortunately, the need for measures to address the problems of marital breakdown has not decreased in the years that have passed since that report. The White Paper on Marital Breakdown in Chapter 4 sets out some of the unfortunately depressing statistical information from various sources which gives an indication of the extent of marital breakdown in Ireland.

As well as involving reforms of family law, a comprehensive approach to dealing with marital breakdown must also address the implications of marital break-down across a broad range of Government services and activities, including the taxation and social welfare systems. As far as the Department of Social Welfare is concerned, we will be undertaking a very careful examination of the implications of any proposals in relation to divorce on the social welfare system and on the range of benefits and allowances which currently exist.

As the House will be aware the Second Commission on the Status of Women recommended that the Government should work towards establishing by 1997 a system of individual payments in the social insurance and social assistance systems. Some Deputies may view this proposal as the ideal solution and certainly a system of individual payments would simplify the issues which would arise in dealing with the introduction of divorce.

There are, of course, very many other issues which must be addressed over the coming months as part of the debate leading towards next year's referendum on divorce. But for now I simply say that I hope the debate will be as open and constructive as possible, that we may be able to work towards a cross-party approach in so far as possible, and that the aim at all times should be to encourage couples to deal themselves with the fall-out from relationships which break down, so that judicial intervention may be seen as very much a last resort.

However, given the timetable contained in the Programme for Government which envisages the holding of a referendum in 1994, the Departments of Social Welfare and Equality and Law Reform will be giving very close attention to the impact on the system as it presently is of the introduction of divorce and indeed of the issues which arise in relation to marital breakdown generally. For my part, I would very much welcome the views of Members as to how this examination of the social welfare system should proceed.

Among the issues which arise for consideration in this regard is the concept of dependency as it currently exists in the social welfare code. In fact, our entire social welfare system is built on the assumption that the family unit is composed of a breadwinner husband with his dependent wife and children. Assumptions such as this may no longer be appropriate to our changing society. The pattern of family formation has been changing for a number of decades. Among the recommendations of the Second Commission on the Status of Women was that the term "qualified partner" should be substituted for the term dependent in the social welfare code. I would regard such a change as only a first step towards a more long term goal of restructuring the social welfare system to incorporate a greater degree of individual entitlement. Language matters, it can categorise and place people and confirm, in particular, dependency status. The description "deserted wife" is one which is hurtful to many women. The whole question of classifying a woman by reference to her former partner must be questioned.

I will now comment on some of the points raised by Deputy Theresa Ahearn — I am sorry she is not present. That Deputy, and Deputy Shatter, were critical of the Labour Party but I must point out that I did not hear them express the Fine Gael viewpoint in their contributions. We should be told what the Fine Gael view is on these matters. It is fair to criticise others for not giving their view but that puts a requirement on the Fine Gael Party to say what it thinks. It seems to me that Fine Gael, divided among itself, can only oppose. In the interests of an open debate will Fine Gael give some indication of their views on the options to be presented to the people?

Deputy Ahearn spoke very movingly about marriage breakdown. That Deputy, and Deputy Gilmore, identified unemployment and housing need as contributory factors to marriage breakdown here. While that is certainly true in some cases, marriage breakdown is no respecter of social class. In fact, the rate of marriage breakdown is just as high among the rich and famous as among the poor. While it may be fair to identify financial problems as contributing to the breakdown of a relationship, marriage breakdown is no respecter of class. In Sweden, for example, which has relatively low levels of unemployment and high income the rate of marriage break-down is extremely high.

I noted also Deputy Ahearn's comments on housing and her implicit call for a higher level of investment in public housing so that the separating partners may have the opportunity to be rehoused. I ask the Deputy to convey that viewpoint to Deputy John Bruton, who is on record in this House as attacking the Government's proposals for its public housing programme in the Programme for Government and in this year's budget. This year the Government is committed to 3,500 housing starts. That will make a significant contribution to those in need of public housing as a consequence of marriage breakdown or separation. Deputy Ahearn might usefully bring this matter to the attention of Deputy John Bruton.

I have particular interest in the welfare of children affected by the breakdown of their parents' relationship. The interests of dependent children should be paramount. As a society we are only coming to terms and recognising that marriage breakdown is an unfortunate reality. Through the process of mediation and counselling, the people should be able to come to an arrangement which would allow both parents adequate access to their children.

Generally the child stays with one parent and regular access is arranged for the other. I am aware from dealing with clinic and constituency cases that where proper counselling and mediation is absent, the question of access can become fraught with difficulties and can be a reason for continuing friction between the parties long after the separation becomes a reality. Those working in mediation and counselling services are doing an excellent job in this regard and I hope at the end of the day we spend as much money on those services as on lawyers' fees because it would be money far better spent in terms of the long term happiness of all the parties involved in a marriage breakdown.

When divorce becomes a reality here we will need to address the problem of people in second or third relationships which break down. For example, even in the case of violence in the relationship it is impossible for a person to get a barring order against a partner in a second relationship. Even where a woman is a tenant in a house or the owner of it she may still find it impossible to obtain a barring order to limit access or bar her second partner from that home. I am sure many women Deputies are familiar with the difficult and fraught circumstances which can arise in such cases.

I hope this debate affords an opportunity for an exchange of views from all sides of the House and enables open and constructive discussion in which we will share our ideas rather than engage and trade in insults across the floor.

Ms F. Fitzgerald

I, too, welcome the opportunity to speak on this important issue. When the White Paper on Marital Breakdown was published some time ago the AIM group for family law reform, while welcoming it and indicating various aspects with which it agreed, listed a number of areas which had not been addressed. Members of AIM meet stressed people on a daily basis who require counselling and information in this area. The AIM group believe that violence in the home, specific proposals about the ownership of the family home, civil legal aid, mediation, family court tribunals, judicial appointments and training and court services have not been adequately addressed in the White Paper.

The Government must ensure that there are no loose ends when the referendum on divorce is held. I urge it to pay particular attention to a range of issues, many of which have been mentioned. Those issues include the area of pensions, enforcement of financial agreements, the development of a national mediation scheme, provision of accessible legal aid and joint ownership of the family home, not to mention the social welfare and taxation implications which Deputy Shatter spelled out this morning.

I should like to correct the Minister's interpretation of Deputy Bruton's remarks in regard to housing. Deputy Bruton said we should not build housing estates, as we have done, in areas where there are no facilities and where families live in isolation with poor access to public transport and so on. Deputy Bruton did not make an attack on public housing. Nobody has fought harder for public housing than the Fine Gael councillors.

The rock on which this debate perished on the last occasion was that of certainty. To be honest, there was no real debate on the matter, only a trotting out of prejudice dressed up as principle. A great deal of energy went into protecting institutions and not enough into protecting people. This debate is about women, men and children, families in vulnerable situations.

Many issues need to be tackled before a referendum is held. Everything must be dealt with before the referendum. Even the phrase, "the loose ends", makes the issue to which I refer sound less than crucial, but there is no doubt that they are. They are critical. I am disappointed that the Minister did not go further in his speech. He should have spelled out Government plans in this regard and, at least, given his opinion on the five alternatives mentioned in the White Paper. If any one of the issues I mentioned is not fully dealt with, we will not have any hope of having a debate and referendum based on issues of human dignity and family support.

It is vital that when the question is again put to the people that the scare tactics of 1986 play no part in the debate. People will have different views and, as the Minister for Justice, Deputy Geoghegan-Quinn, stated this morning, people have clear values in this area and will want to express them in a referendum. People have an absolute right to do so and that is why we should hold a referendum. Let us not introduce scare tactics into the debate, we should have a high quality debate on the real issues at stake in regard to the value of our society and the direction in which we wish to go.

The scale of marriage breakdown here is such that it is imperative that a second constitutional amendment on divorce is adopted. Leaving people without the option is a form of social punishment which has no place in a mature and confident society. Surely we want to create such a society where people make real decisions based on their needs and what is best for them and their families?

The vulnerability of women and how easily that can be exploited to achieve a political end must be addressed. It was exploited in 1986. Unless pension rights are sorted out this time there are those who will paint the picture of poverty in old age to frighten women against voting for divorce. It is difficult to understand why people continue to approach this tragic issue by insisting that a woman must choose between, in effect, the lesser of two evils and some would, given half a chance.

The answer to the financial problems associated with divorce is not to prohibit divorce but to tackle the underlying causes of poverty. The answer to the social and other problems associated with divorce is not to prohibit divorce but to reassess how individuals at different ages are treated by our society. To do otherwise is to consign men, women and children to sterile marriages, possibly involving violence and abuse — we have heard much about that in recent weeks and months — rather than create a structure which allows people to rebuild their lives and contribute to society in a new relationship. Marriages which have irretrievably broken down but which are held in position by external pressure — we have seen much of this in Ireland — and by the lack of a proper system to allow people to move on, do not contribute to the health of the family as a concept. Neither do they contribute to the health of other families and we must acknowledge this.

For many years I worked with families who were under stress, where children were particularly vulnerable. There is no doubt that martial discord is a serious problem and does nothing for the mental health of children. It is highly damaging and leads to emotional and behavioural disturbances in children. I will comment on those matters later. It should be acknowledged that marital discord within families creates great disturbance in children. Very often it is the distress, conflicts and arguments that have taken place before a separation that lead to the difficulties experienced by many people. This is a complex issue.

One of the issues that will have to be tackled simply and honestly is the fear created in many people, particularly older people, of divorce. The effects of violence in the family is a matter that will have to be considered more openly and I am pleased we are beginning to do so. I congratulate the Minister for Justice on her announcement this morning that a special Garda unit has been set up in the past few days to ensure consistency where gardaí are called to deal with violence in families. It is interesting that it is a female Minister for Justice who has set up this unit because this matter has been spoken about for a long time. I hope this will result in these cases being dealt with more effectively and consistently.

The effects of marital discord and violence within families must be considered together with a number of other issues. For example, legislation dealing with difficulties within marriage would not be unconnected with the Child Care Act. It is critical that the necessary provisions that were debated in this House a number of years ago are implemented and that provision is made in the budget to implement the provisions of the Child Care Act. Vulnerable families should have available to them community care services as well as counselling and mediation services. Local family support centres and marriage guidance centres must be developed. The problem of marital discord is not confined to any one sector or class.

We must educate parents about the needs of their children in the event of separation or divorce. My experience with many Irish families is that they are not getting the support and information they need. Very often they do not get the counselling necessary to continue parenting after a separation. Very often partners lose contact with their children after the marriage breaks up and there is a great sense of isolation for the non-custodial parent. While we know that separation leads to a breakdown in the partnership it should not lead to a break-down in parenting. Parenting must continue and we should support these families for the sake of the parent and the child. Research shows conclusively that many children suffer a great sense of loss in the case of marriage breakdown and very often they suffer in silence. The attitude of society to this issue, the attitude of all of us, of friends, families and schools, affects children. We must show leadership on this issue and help people in this position to cope by ensuring that the range of services I have outlined is available.

There is great fear that if divorce is introduced it will, to coin the dreadful cliché, open the floodgates. It always fascinates me that a society which purports to place a unique value on marriage and the family believes that if divorce was legal people would suddenly abandon this central structure without thought. The statistics of the AIM group on this issue are very interesting. They quote the length of time people are married before they come to AIM for advice or information on separation. It is very clear that many people try very hard to keep the marriage together before thinking about separation. For example, AIM state that 59 per cent of clients have been married for more than 15 years — this is very interesting — and only 22 per cent for less than ten years while 44 per cent have availed of marriage counselling. Those interesting statistics show that people make an effort to keep the family together before going for help and information on separation.

Our approach can be compared with the building of a ship and saying we should not put lifeboats on it because that would encourage people to take to the boats at the least opportunity. However, it does not work that way. There is one historic example of where the lack of provision of boats cost the lives of people who never thought they would have to take to those boats — that is the Titanic. Like many marriages that ship was expected to last for half a century. It was so well planned and built that it was unthinkable it would sink. However, like many marriages, it met an obstacle and sank. People were so confident the ship would not sink that there was not a sufficient number of lifeboats to rescue everyone. Hundreds of people died because there was so much confidence in the structure while not enough time and planning had gone into how to rescue people in the event of something going wrong.

We should not allow the value we quite legitimately and properly place on marriage make us think like the designers of the Titanic.We need to create the best possible conditions for marriage and the best mediation services to support marriages under pressure. We need to create a legal system that acknowledges the reality that not all marriages can and will survive. The system should not punish those individuals unlucky enough to be trapped in a failed marriage. It is vital that the whole process that exists to assist, support and adjudicate on failed marriages is accessible and appropriate.

In regard to the family courts system — the training of judges, solicitors and barristers and the provision of effective legal remedies to deal with difficulties within families — a compassionate and fair approach must be taken. More women must be appointed to the Judiciary. We will have to note the experiences of other countries in this regard, those with good schemes as well as those with poor outcomes. There are examples of poor outcomes in handling this issue and there are cases where marriage is not valued. Obviously, we have to be very careful in our approach to this issue and we will have to separate fact from fiction. We must not frighten people into thinking that one partner will suffer financially as well as in status, claiming that this has been proven by experience in some non-specific location overseas. People often say divorce renders women poor but in many cases women are poor already. This matter needs to be addressed.

On the question of the mediation service I ask the Minister why there is need for another review committee and how long will it sit. Surely it is self-evident that the mediation service needs to be developed.

Finally I would refer to the question of access to legal aid. At present there are 12 counties with no legal aid centre. If divorce legislation were introduced tomorrow people living in these counties would be seriously disadvantaged in that they would not have equal access to a law that is meant to serve the whole nation. That is only the tip of the iceberg. There are also implications in the areas of social welfare, taxation, pension rights and family courts. If the Minister is serious about holding a referendum next year he will have a very busy schedule. He will have to liaise with other Departments to ensure the whole process is put in place. We will need more leadership than was evident in the Minister's speech this morning and a speedier response if we are to ensure that the vast range of issues are tackled before legislation is introduced. If they are not tackled I will be very worried about the outcome of this referendum.

Mr. Lenihan

I welcome the Minister's statement this morning which shows that the partnership Government is proceeding with the implementation of the White Paper published last September. The White Paper outlined the proper approach to what can be and has been a divisive issue. The key paragraph in the White Paper, paragraph 11.4, states:

The Government proposes to proceed with a divorce referendum after a full debate on the complex issues involved and following the enactment of other legislative proposals in the area of family law which are outlined in the White Paper. The Government will consider the responses to the options contained in this White Paper in advance of finalising its proposal on this matter.

Today we are considering the various options and I hope the Government will proceed expeditiously to the preparation of legislation. In 1986 we proceeded to a referendum without the proper legislative back-up. The Minister for Equality and Law Reform this morning indicated that we are now proceeding into a bedrock of basic legislative proposals prior to a referendum which will provide for the deletion of the ban on divorce and the introduction of suitable new wording. I hope the legislation will provide a universal system of civil registration instead of the present denominational system of civil registration of marriages. We also need legislation to accede to the European Community and UN Conventions aimed at facilitating the enforcement of maintenance orders on a world wide basis.

The Minister has guaranteed that he will introduce family home protection legislation giving statutory entitlement to an equal share to both spouses in the ownership of the family home and chattels. The rights of the child should not be ignored and the Minister should introduce legislation immediately ratifying the UN convention on the rights of the child. We also need legislation on the rationalisation of nullity procedures, providing that such proceedings can be taken in the Circuit Court. We must recognise foreign divorces in our legislation. At the moment foreign divorces and decrees create confusion for many people.

I share the views of Deputy Frances Fitzgerald that the mediation services should be amplified to provide a back-up for a whole system of family courts. The Minister this morning did not commit himself on family courts as he is awaiting the recommendations of the Law Reform Commission. We must have family courts backed by mediation services. All this legislation should be dealt with before introducing a proposal for a constitutional amendment next year to delete the ban on divorce.

We must consider the type of amendment we need to substitute for the ban on divorce. Five options are outlined in the report. The Minister indicated that he has an open mind on them and asked for comments. A key question is whether we should include provisions for divorce in the Constitution. I would warn against putting too much detail into the Constitution. We had difficulties in another area in this respect. Of the five options outlined I am more attracted to the fourth one which refers to the use of the Judicial Separation and Family Law Act, 1989. What is proposed is that where a judicial separation has been granted and the court is satisfied that the marriage has irretrievably broken down, that proper provision has been made for the dependent spouse and children and that the couple have not come together for at least two years, it can grant a dissolution order. That appears to be the best approach because it uses existing legislation providing for judicial separations. I know there will be much debate about this in the months ahead.

The existence of that Act is a great help to us. The property transfer provisions in that Act can be easily adapted for the purpose of the divorce legislation that will be necessary to implement the constitutional provision after the referendum. The new legislation will cover property transfer, taxation and social welfare provisions. The fourth option provides for a blend of existing legislation and a proper constitutional approach. As long as we proceed along the lines envisaged in the report we can have a constructive debate over the next 12 months. When the necessary legislation is passed we can make the constitutional amendment required and introduce the final legislative proposals to copperfasten the constitutional decision. We should approach this serious social issue in a constructive way that will be to the credit of this Parliament. It was not approached in the right spirit in the past. I will not dwell on the past but if we grasp the opportunity we can deal with this issue properly. We have all the information to hand in respect of the White Paper and the Minister's statement this morning should guide us along the right path.

Miss M. Wallace

I agree with the previous speaker, and other Members, who say that the climate can be so much better for discussing this important issue when we have a White Paper on Marital Breakdown and when we take into consideration the many issues which affect people whose marriages break down.

In his contribution the Minister said he would love to have a magic solution which could in some way make the break-down of a marriage pain free for the people involved. We all know there is no magic solution but if we go about dealing with the problem in the correct fashion we can ensure that the people who suffer as a result of marriage breakdown do not continue to suffer from financial difficulties and the absence of ownership of a family home. The Minister said this morning one of his priority areas was the family home Bill which he expects to introduce before the summer recess. Last year I tabled a number of questions to various Ministers regarding the family home Bill which was drafted last year and should have been introduced before now. I appeal to the Minister to introduce the Bill before the summer recess. Its introduction should be an absolute priority. There are many people waiting for the very important provisions in the Bill. If we were to get no other message across today, except the importance of the immediate introduction of the family home Bill, it would have been worth while. The replies I received to the various questions I tabled last year to various Ministers were to the effect that it was almost at the presentation stage and was a priority. That is still being said today and it is time the Bill was presented. I appeal to the Minister, and his staff, to ensure its immediate introduction.

I am satisfied that we can debate this important subject in a more constructive fashion than in the early eighties when we discussed the holding of a referendum. Some people may say the issues raised during the referendum were scare-mongering tactics but they were important. The White Paper on Marital Breakdown will relieve people of many concerns and worries about the family home, the farm, the business or the finances. There is no point in even contemplating putting another referendum before the people of Ireand until all these important issues are cleared up because a referendum on divorce is a referendum on the right to re-marry. All the financial implications for the spouse and children must be sorted out before we can contemplate going down that road again. The previous speaker was correct when he said at the time of the divorce referendum too many issues had not been attended to. We must ensure that between now and next year the appropriate legislation is put in place and that these issues are clarified.

Speakers referred to the importance of reconciliation and mediation. When we speak about marriage breakdown we must recognise the importance of the mediation service. It is encouraging to note that the Department of Justice pilot scheme has had a 60 per cent to 70 per cent success rate. That should be extended because the success rate of the mediation service is important. I accept what Deputy Fitzgerald said that people enter into perfect marriages and never expect them to break down. Marriages can be affected by many outside influences and not necessarily by the internal relationship. Couples do not expect their marriage to break-down. Mediation services can effect change in relation to marriages, can bring people together and ensure the continuation of the relationship.

I welcome the extension of family courts which is a recognition of the unsuitability of existing court rooms for sensitive family cases. Another extremely important area is that of unenforced and inadequate maintenance payments which is the key route to poverty for women. We should all be concerned that three out of four maintenance orders are in substantial arrears. The concrete action outlined in the White Paper is welcome. This goes back to the time of the marriage bar when women became dependent on their spouses and the children, therefore, were dependent on women. Therefore, when the marriage broke up financial difficulties were to the forefront.

While debating the White Paper on Marital Breakdown the time is opportune to debate also the Programme for Government and the report of the Commission on the Status of Women. The latter is extremely helpful in setting out the issues which are central to the lives of women in Ireland. The reason I concentrate on women in marriage break-down is that without a shadow of a doubt, they are the sufferers because of their financial dependency. The report of the Commission on the Status of Women had mapped out clear guidelines which will be of major assistance in this debate.

We have come a long way from the time when a wife's contribution to the family's welfare was considered to be less than that of her husband. The concept of an independent and equal existence for married women has been considerably advanced in the workplace, in the tax code and in other areas. I realise that further improvements are to be made in regard to taxation. This concept, in terms of family possessions, must now be properly enacted in legislation. I stress the importance of the introduction of the family home Bill and I cannot understand why it was not been introduced in this House before now. We need to get the point across to the Minister and the Government, that there is no reason for any delay in introducing that Bill which was promised some time ago. It is one of the most important steps we can take to assist women, many of whom thought they had equal ownership of the family home. While the Family Home Protection Act was of assistance the family home Bill will be more relevant in this area.

Recognition of the contribution of the homemaker to the financial welfare of the family by placing a monetary value on it should property distribution become necessary is also an important issue and is covered in the White Paper. I welcome the Government's commitment to legislation on this issue. The idea of the husband as the breadwinner and the dependent idle housewife is in no way valid. Women in the home contribute significantly to maintaining the financial welfare of the family. Various studies have shown that married women work longer and have less spare time than their husbands. This must be acknowledged.

Marital breakdown in cases of family violence was raised this morning. There is definitely a need for an improvement in the application of barring orders and how they apply in marriage. This point was made in the report of the Commission on the Status of Women and I welcome the Government's commitment to action in that regard. I welcome the raising of the age of marriage to 18. It is recognised that 16 and 17 year olds, as a general rule, are not sufficiently mature to commit themselves to the responsibilities involved in marriage.

Finally, I wish to stress the importance of a well-funded system of civil legal aid. Like the family home Bill we continue to speak about this. Civil legal aid is essential for equal access to legal remedies in marriage breakdown. In most cases of breakdown one partner controls the family resources, leaving the other partner, usually the woman, in the position where she is unable to afford to enforce her rights in law. She does not have access to legal aid or to funds with which to pay for the legal advice required to protect her. Therefore, reform in the area of civil legal aid is the key to giving legislation real and practical effect. The White Paper is very important in that it contains major changes in this area. Like most speakers, I want to stress that people do not want to go through what they went through before in a referendum where many important areas were not properly explained and understood. It is very important that essential legislation in this area is brought before the House as soon as possible.

I accept the Minister's statement that he will assign considerable importance to the family home Bill and that he expects to introduce the necessary legislation before the summer recess. All I want to say in this regard is that Deputies do not want to go into another summer recess without this Bill having been enacted. I appeal to the Minister, his officials and the Government, to ensure that the family home Bill is brought before the House and enacted before the summer recess.

Ms McManus

I wish to share my time with Deputy Sargent. I had a feeling of déjà vu this morning when I heard the Minister's speech. He has played it safe at a time when boldness was needed — he covered the same familiar ground when many of us were expecting something rather different from him. More importantly, all those people outside this House who have been waiting patiently, and impatiently — some of them — for action to resolve the terrible dilemma in which they are living — in new relationships and with the residue of previous relationships which have gone wrong — must be disappointed at the Minister's speech. It has to be recognised that, in reality, people have outstripped the legislators in regard to divorce in that many thousands of them are already living in second relationships or have formed households which do not fit the norm. It is time we acknowledged the reality that the old family model as we know it is not the norm. I think the last statistics issued indicate that people living in the traditional family model are in the minority.

The debate reminds me of someone who has a sore and who, instead of leaving it alone, insists on scratching it because it is itchy. All Members on this side of the House expected a firm indication from the Government on how it will deal with this problem. It is not the first time the Minister for Equality and Law Reform announced that he will hold a referendum on divorce next year. What we wanted to hear — we are entitled to hear this — is the next step, the shape of the amendment, the thinking of the Government and the deal reached by the famous partnership, about which we hear so much, on this issue. We have not got this information and time is running on. I should like to remind the Minister that when the report was issued, I think, last September the previous Minister for Justice, Pádraig Flynn, undertook to introduce legislation on joint ownership before Christmas. Christmas is now well and truly gone——

Mr. Costello

With due respect, Deputy, there was a general election.

Ms McManus

I do not believe that the holding of an election is sufficient grounds for any more delay in this regard. I am surprised that the person who made that point——

Mr. Costello

I do not think the legislation can be introduced any sooner.

Ms McManus

——does not agree that we need to resolve the difficulties people are experiencing on a daily basis as soon as possible. It is remarkable that we do not have a clear timetable on legislative reform, a clear indication of the procedure which will be followed and the shape of the referendum. The people who are looking for divorce legislation — I believe every family has now been touched by marital breakdown — deserve this information as a minimum.

Priority should be given to tackling the issue of legal aid. The Minister touched on this point in his speech. It is very hard to measure and describe the level and depth of the difficulties experienced by people, particularly women, in getting free legal aid. A criminal can avail of free legal aid but a woman who has been battered is not automatically entitled to it — she will have great difficulty in trying to wrest some assistance from an overloaded system, which may, geographically, be very far away from her.

Marriage is an agreement between two adults to live together as a domestic and economic unit. The growing rate of marital breakdown is of concern to many people and pinpoints the need to educate young people about relationships. I believe we underestimate the innocence and naivety with which many people approach the marriage contract. I suppose if those of us who are married knew what we were getting into we would have given more thought to it. Much educational work could and should be done to prepare people for the serious issues of marriage and parenting. I always remember Jesse Jackson addressing a class of young people, most of whom were boys, and telling them, "You are not a man when you can produce a child, you are a man when you can mind a child". If that simple lesson was got across to young people it would be possible to prevent many of the difficulties which arise in later life.

Indeed, the argument is now being made in some countries that there should be a contractual obligation on the marriage partners in regard to the future children, quite apart from anything that happens between the adults, and that that contractual obligation should stand between the parent and child regardless of whether the marriage breaks down. That is a sound principle because no matter how much we try to support marriages and ensure that people stay together people will change and marriages will inevitably break down in certain circumstances. I agree with the points made in relation to social deprivation, homelessness and unemployment, but we should recognise the number of marriages which hold together despite terrible strains and circumstances. Even families living in the most affluent homes can break up.

Women must have a place of refuge from violence. Such a place of refuge is not available and people who think it is are fooling themselves. I regard the provision of a place of refuge as the first line of defence for a family. There have been improvements in the provision of refuges in urban areas — there is still continual over-demand on those resources — but a woman who lives in a small rural community, is a long distance from a city or a large urban centre, has nowhere to go for refuge. This issue has to be addressed, which it has not been to date. Despite all the nice things which are said about refuges and the wonderful comments made again and again by public representatives, the reality is that women have no place to go in the middle of the night for refuge after they have been kicked by their spouse.

We need to support marriages and create an environment in which they can hold together. However, we must also recognise that all marriages will not hold together. We need to face up to the issue of divorce and ensure that we send out a clear message that we, as legislators, will frame fair and humane divorce legislation. Because we are coming late to this question, I suggest that we have an opportunity to put forward innovative proposals in divorce legislation. The time for talking is over, the time for action is now. People have waited too long for divorce legislation, I ask that this reality be finally recognised.

Mr. Sargent

The Green Party, Comhaontas Glas, has a closely considered position on marital breakdown. We support the ending of the constitutional ban on divorce and are in favour of legislation to protect the rights of all people involved after a divorce. While we welcome the White Paper on Marital Breakdown as a step forward on the path to a second divorce referendum, its contents are deeply disappointing. Its failure to make firm recommendations gives it the flavour of a Green Paper. It frequently makes suggestions and then states that these can be altered in the light of further submissions. It is alarming that a document which took two years to produce should emerge as a hotpotch of submissions from both pro- and anti-divorce lobbies and present an inadequate view of the current legislation in this area. Consideration is not given to proper funding for the proposals presented.

Marriage is an agreement between two adults to live together as a domestic and economic unit. If this agreement breaks down the steps necessary to dissolve the marriage should be left as much as possible to the two adults, with due regard for the responsibilities that arise from the marriage. The document's tone is particularly troubling in that it has inferences of blame and some parts show an unwarranted interference in people's personal lives. It states, for example, that the strictness of a divorce regime could be determined by the precise grounds to be included or omitted. Many countries are taking the view that non-adversarial legislation is preferable to fault-based legislation. Ireland has an ideal opportunity to lead in the introduction of humane and mature legislation on divorce.

The removal of the constitutional ban on divorce could give the Oireachtas the opportunity to introduce legislation and in due course to alter legislation that may not stand the test of time. It is inappropriate in a Constitution to go into the specifics of legislation. The necessity for a further referendum on the Eighth Amendment illustrates this point. The other suggested wordings would create major problems in terms of legislation and all are totally unacceptable as constitutional amendments.

Perhaps the most annoying and insulting of the proposals relates to a judicial separation followed by a two-year waiting period. It is stated that in practice a two-year waiting period between the granting of a judicial separation and an application for divorce could represent a period of reflection which in some cases might lead to reconciliation.

The provisions regarding joint ownership of the family home are welcome. I would remind the House that it is over a year since legislation was promised as a matter of urgency. Although the White Paper states that a review committee has been set up to deal with the question of mediation, it is patently obvious that this is an important service that should be extended and its funding put on a permanent footing.

Reference has been made to legal aid. The White Paper states that as and when the availability of financial resources and the overall situation with regard to public finances allows, the civil legal aid scheme will be developed and expanded. The lack of any firm commitment to funding is short-sighted in that further problems will occur due to the lack of legal aid and rebound on the State in the long term, resulting in the danger of an uneven dispensation of justice.

It is known that the number of family law hearings is high, but the point has recently been reiterated by Mrs. Justice Susan Denham that as these cases are held in camera the extent of the problem is not currently highlighted. It is vital that judges should receive specific training in the family law area. As a former primary school principal, I believe that family tribunals, especially where children are involved, may be a better way of handling marital breakdown cases than the traditional adversarial system.

Funding for refuges is needed as a matter of urgency. When refuges are full women and children are placed in bed and breakfast accommodation, putting them at further risk. This is a massive cost to the State and a totally inappropriate way of dealing with this problem. While some provisions were made in the budget for helping the Rape Crisis Centre, no help whatsoever was offered to Women's Aid which provides such a necessary service in this area.

The White Paper is factually incorrect on the matter of foreign divorces. We know of cases which should have qualified but were refused by the registrar. Legislation is needed to recognise separation agreements and foreign divorces entered into prior to any new divorce legislation. This should also address the legitimisation of any marriages that may have taken place based on these divorces, in a similar way to the retrospective recognition of marriages in Lourdes some years ago.

The White Paper's recommendations on the civil registration of marriage seem at first sight to address the Divorce Action Group's call for a separate civil ceremony. However, it seems merely to apply to the actual registration of the marriage and unless strengthened would still fail to differentiate properly between the legal aspects of a marriage contract and the religious ceremony.

The question of pensions was dealt with briefly in the Social Welfare Bill. At present pension and superannuation schemes, including State schemes, discriminate against couples in second relationships. This should be addressed as a priority, having due regard for any dependants from a prior relationship.

Because of the foregoing reservations, the Green Party, Comhaontas Glas, views the White Paper on Marital Break-down as a dangerous foundation for the enactment of divorce legislation in that it attempts to use concepts of punishment and blame in marital breakdown situations. The Government is well placed, however, to look at divorce procedures in other countries and to learn from their mistakes. Other jurisdictions have learned to their cost that adversarial systems can result in protracted and bitter legal wrangles. Perhaps we can take the lead in enacting mature legislation that addresses the reality of marital breakdown in a sensitive, fair and humane manner.

Minister of State at the Department of Enterprise and Employment (Mrs. O'Rourke)

I approve of the way the Government is going about their business in the presentation of the White Paper and the debate on this matter. I understand and share the impatience felt by Deputy McManus but festina lente is best. The Minister for Equality and Law Reform, Deputy Taylor, and I were Members in 1986. There was huge confusion in the country in the lead-up to that rushed referendum.

Ms McManus

I remember it well. There is no danger of that now.

Mrs. O'Rourke

The Deputy may laugh but I do not believe the cause of women will be served if these matters are rushed. We all know people from all walks of life, and from all groupings in society, who entered into marriage with high hopes but for whom, sadly, life has not turned out as they expected. Everybody enters marriage with high hopes. It would not be beneficial to rush forward in an attempt to help the numerous people, men and women, whom we propose to assist by legislation in the years ahead.

The White Paper is a discussion document, as well as looking to legislation. Several Bills have already been enacted dealing with the status of children and giving more security to spouses, particularly women. We have been late in coming to the idea of looking at the prohibition on divorce in our Constitution. Some years ago I said I favoured divorce at a time when it was really not very smart of me to do so. I still hold that view. I am also of the view that, because we have come late to it, we are enabled to look at all the issues that would arise if the constitutional ban were to be removed and to approach it in a fair and considered way.

I am particularly pleased that the Matrimonial Home Bill will be brought into the House before the summer recess because the fact that they could lose their homes overnight if this issue were not properly addressed was what caused the greatest upset to women at the time of the last referendum. Dr. Garret FitzGerald addressed the issue at that time according to his very strongly and deeply held views. However, the referendum was precipitate and it was wrongfooted because it left people feeling insecure.

I would hope when the referendum is eventually held that all of us in the House will campaign for it but regardless of the outcome, the measures to be introduced by the Government will stand on their own merits quite apart from a constitutional referendum on the issue. The various measures will be carefully considered in the House with the correct legislative acumen and will greatly benefit the position of women in Irish society. They are to be welcomed in their own right.

I want to pay tribute to the Family Mediation Service. The introduction of that service is another measure which stands on its own. When it was set up some years ago I met the people involved and I was greatly struck by their huge commitment to it. Much more than people in other areas of work they are committed and believe in what they are doing. They believe in the value of addressing the issues that arise when a couple decides to separate, after a lot of painful discussion, in a more intimate atmosphere than that of a courtroom, in order to minimise the trauma of the children and of the couple themselves so that the feelings afterwards can be assuaged to some extent. Bitterness in the aftermath of a break-up does not help and that bitterness can be greatly assuaged by the work of the Family Mediation Service. The Minister is already looking at ways of putting this service on a statutory footing and giving it better funding. The Family Mediation Service has been one of the unsung stories of Irish life. When there are children their feelings and sensibilities have to be thought of. The fact that there has not been the divisiveness of court proceedings that children are very quick at picking up leaves them much more tranquil and easy in their young minds.

I welcome very much the way the debate is proceeding. Of course we wish to bring it all to a conclusion but we must do it with care and consideration. I am very much in favour of the way the Government is going about its business in this matter.

Mr. Mulvihill

I wish to share the remainder of my time with my colleague, Deputy Costello.

Mr. Taylor

If it would be of any help, Deputy Mulvihill can use some of my time.

Mr. Mulvihill

Thank you, Minister. I welcome this opportunity to speak on marital breakdown.

The breakdown of a marriage is a traumatic experience for any couple to bear as it affects everybody in the immediate family and, to a lesser extent, distant relatives. For all concerned it is very much a painful experience. Nevertheless, as a society we must face up to the problem and deal with it in a mature and realistic fashion.

Many people in Ireland know of people who have experienced marital break-down and I believe that we must treat such people in a compassionate fashion without patronising them. The climate in Ireland has changed considerably from that which existed in 1986 when the Irish people rejected divorce in the constitutional referendum. Many people now feel that there is a real need for divorce in Ireland, particularly in cases where marriages have irretrievably broken down. I support the holding of a constitutional referendum on divorce, but before such a referendum is held, it is imperative that people understand exactly what they are voting for.

I would urge this Government to take great care to clarify a number of important outstanding issues including maintenance, the family home, nullity, foreign divorces, among others. I would like to take this opportunity to praise the White Paper which goes to great lengths in clarifying many of these issues.

As there are no accurate statistics on the subject, the rate of marriage break-down is hard to quantify. According to the 1991 Labour Force Survey there are at least 47,000 people in this State who have broken marriages or legal separations. Indeed the report on marriage breakdown claims that this figure is an underestimation.

One of the many things I am totally opposed to is divorce "Nevada style". I would be appalled to think that people could get married one day and, on a whim, get divorced the next. However, we should not expect couples whose marriage has broken down to go through the eye of a needle before they can obtain a divorce. It is important that this House considers this question very carefully.

I would also ask the Government to provide legal aid on a statutory basis. Such a system must be properly resourced, otherwise it could result in there being one law for the rich and one for the poor.

I am also very concerned about what happens to children whose parents are separated. I would hope that there will be support systems to cater for the needs of people in this unfortunate situation. I would make one special appeal to the Minister. There are people coming to my clinic week after week who have barring orders against their husbands and cannot renew these barring orders until the queue for the free legal aid system is cleared. These husbands are coming back and threatening their wives and children and beating them up again. I appeal to the Minister to look into this situation.

Mr. Costello

At the outset I would like to applaud the Minister for his approach to this matter. It would not have been possible to put forward these proposals any earlier. There is a very specific commitment in the Programme for Government to dealing with the whole question of marital breakdown. From some of the remarks made here earlier today it seems that people are not aware of these proposals which include: a major programme of family law reform culminating in a referendum on divorce by 1994, modernisation of the law of nullity, placing a monetary value on women's work in the home for the purpose of property distribution, extension of barring order legislation, legislation to give each spouse an equal share in the family home and household belongings, an increase in the age of marriage to 18, and finally, enhancement of the rights of parties in non-marital unions.

There is a package of proposal in relation to family law reform, separation and marital breakdown, culminating in a set date for the introduction of a referendum on divorce. That is the approach and if we diverge or try to alter the set timescale we will be in the position in which we were eight years ago when previous proposals were brought forward, which failed dismally. We do not want to go through that painful, traumatic experience again. This time round we must get the approach right, it must be successful. If this country is to go forward with the ideal now being presented abroad from all sectors of the population, and certainly that is my perception, that we are a truly pluralistic society, it is extremely important that we no longer think simply in terms of black and white. This is a complex matter and it cannot be judged in terms of right and wrong or sinful and non-sinful.

This issue concerns the extremely complex matter of human relationships, it is not right to say that the matter can be dealt with by way of a constitutional prohibition, which will be the end of it. That is not the way society should work. As legislators we have a responsibility to ensure that we represent the needs of all the people. If we bury our heads in the sand, ostrich-style, pretend that the need for divorce does not exist and go back to a simplistic, penal-type black and white situation, we will be letting down the people who elected us, doing society a disservice and certainly not acting as good legislators. The approach should be to address the issue. The Programme for Government indicates the points that have to be dealt with; the issue itself, ensuring that the legal supports are in place, examining existing legislation determining the areas in which it can be built on, areas in which further legal supports can be introduced and then paving the way for further legislation to ensure that we do not have a similar debacle to that of 1986 when misrepresentation was rife in relation to the proposals put forward for the divorce referendum. It is important that people are not confused and know what we are seeking to do. It must be recognised that we are seeking to be positive, not doing away with rights and entitlements or damaging people's lives or future. Having paved the way for suitable support legislation, the next step is to examine the prohibition on divorce in the Constitution, eliminate it and put in its place a positive statement of our position in relation to marital relationships. That is what the Minister said today, it is contained in the Programme for a Partnership Government, and we should agree with it. Progress cannot be any faster than that proposed at present.

The relationship between men and women is a huge central issue. It involves not just a one to one relationship, it also involves the relationship with the broader society and, invariably, with children. There is a network of matters to be dealt with and for that reason the issue is very complex. The relationship between men and women is based on the social, emotional and economic networks; none of those can be left to one side. It must be recognised that in all human relationships there are ups and downs, successes and failures. People start with the very best intentions. Nobody gets married with the intention of breaking up. I certainly have not come across anybody who indicated to me that he or she got married for a short duration. People who get married are there for the long haul, to have a solid relationship with the other person and they want that relationship to continue. Human nature being what it is, however, statistics show — and we know from our own private experience — that marriages sometimes break down irretrievably.

I also pay tribute to our mediation service and the work of voluntary groups and agencies to ensure that every support mechanism is put in place. However, when a marriage breaks down irretrievably, as we know it does — that should be acknowledged — we should not bury our heads in the sand. Let us ensure that we put in place whatever is needed to allow people to get out of a marriage that is no longer a marriage. That is the other side of the coin, if a marriage has broken down irretrievably, if the two people are not living together but are separated, they are no longer married — that marriage is a meaningless relationship, it is a mere shell of a full-blooded relationship. Two people who cannot stand living together should not be forced to put up with a mechanism whereby they are bound by a legal relationship for all time. That mechanism does nothing for themselves, their children, their friends, society or legislators.

It is important to face up to reality. As the Minister outlined in his speech, certain devices have been put in place in existing legislation to recognise the real position: spouses may separate for the rest of their lives, arrangements can be made for financial and property provisions for dependent spouses and children, decisions can be taken about custody of and access to children, and in certain circumstances succession rights of spouses can be extinguished. As I said, there are other support mechanisms. More than anything else, we want to make sure that people have access to the legislation that has been put in place to provide for marriages in trouble. Civil legal aid is a sine qua non.Unless people have access to the law there is not much sense in having the law. Unless everybody, the poor as well as the rich, can avail of the law, the law does not do the job it sets out to do. It is important that there are sufficient resources to enable everyone who needs it access to the civil legal aid scheme, within a reasonable space of time to redress their problem.

As I said, we must make use of the existing support mechanisms, there must be access to legislation but we must expand on that and pave the way for the future. A twofold approach is needed in paving the way for the future. It is important to introduce legislation that will cover the issue of home and property ownership. That problem will never be solved unless equal status is given to the partnership. That was the great bugbear of the last referendum. The Minister referred to this problem specifically in terms of introducing legislation, which is now at an advanced stage. While the problem remains, we cannot hold a referendum.

One aspect was perhaps not given adequate attention in the Minister's speech. We have dealt with the issue of a couple who has property, but what about the position of those who have no property, those dependent on social welfare and who are afraid that social welfare entitlements will be lost if new legislation is implemented? I know exactly what went on at the time of the previous referendum on divorce. I remember people going into inner-city flat complexes to give the message, to women in particular, that if people voted in favour of that referendum the result would be a loss of entitlement to the deserted wife's allowance, the lone parent's allowance and any other social welfare benefits. I do not believe for a minute that that is the true position. It must be spelt out clearly to ensure that there is no confusion regarding property, whether it is possession of the home and chattels or in regard to people who do not own homes, who are tenants and depending on the State for their benefits.

We should never have introduced a specific Article in the Constitution prohibiting divorce because that is not the function of the Constitution. It is not involved in the nitty gritty of any situation, it is merely a statement of broad principle and it is up to the legislative body to enact provisions in regard to these matters. The White Paper recommended five possible options in regard to the divorce referendum. We must eliminate the prohibition on divorce in Article 41.3 of the Constitution but we should not leave it at that because it would create a vacuum.

There should be a positive measure in relation to one of the five options. However, I could support only one of the five options, the first — which reads as follows: "provision may, however, be made by law providing for the grant of a dissolution of marriage subject to any conditions prescribed by law". In other words, the prohibition is eliminated and the dissolution of marriage can be made subject to the conditions prescribed by the legislative body. That is the only proper way to go about it because the other options are unsatisfactory. One of them would allow divorce if there had been an absence of normal marital relations for five years, that should be precribed by law and should not be in the Constitution. Another option refers to separation for five years being grounds for divorce. However, five years is just a figure plucked from the air. Another option mentions judicial separation or entitlement thereto for a period of two years. In another decade these figures may be meaningless. The last option refers to irretrievable breakdown being grounds for divorce on proof of a special fault or no fault statement being made. In all, except the first option, you are providing something which is properly the function of the legislators.

We are taking the proper course and paving the way for a divorce referendum to be introduced, according to the Programme for Government, in 1994. However, we should be careful about the provisions we insert in the Constitution. There should be a provision of principle allowing divorce in circumstances to be determined by law.

Dr. Bhamjee

I am glad of the opportunity to speak on this topic because, as a psychiatrist, I see the problems daily of marital breakdown and its effects, which include depression, alcohol and juvenile crime. There is also unhappiness which is not as obvious. Marital problems are very difficult to treat, perhaps the couple may have a hidden agenda and may not be sure whether they really want to part. However, I will not confuse people with psychological terms because sometimes I forget which institution I am in.

I am pleased that the divorce referendum will be held next spring because, eight years ago, I was on the streets campaigning and putting up posters in County Clare when other parties did not. Where was Fine Gael then? It did not canvass as a party although a few of its members canvassed individually in different areas. I did not have any support as chairman of the Clare Divorce Action Group, which I still am, and we hope to start our campaign on Monday. I recently became a trustee of the Irish Divorce Action Group and we will be fighting to have legislation enacted in regard to providing divorce. Indeed there was a provision for divorce in Brehon law, it was only in modern times that the ban on divorce was put into our Constitution. It has taken away the civil rights of people like me who belong to a pluralistic society — I am entitled to four wives.

Mr. Costello

The other extreme.

Dr. Bhamjee

The day the divorce referendum failed was one of the saddest of my life because, as I said, I know the problems which marriage breakdown causes. At that time one in ten marriages had failed but, eight years later, the figure is one in five or maybe one in four. We are not far behind the British figure which is one in three or the American which is one in two.

After marriage ceremonies the priest who conducted the service hopes and prays that the marriage will last because he realises that the figures do not give much cause for optimism. Some of my colleagues referred to the fact that there are about 39,000 broken marriages. I know that there are about 100,000 separated people, indeed the figure could be higher because it is difficult to obtain accurate statistics. I am glad that official documents now incorporate a separated category, maybe next year the divorce category will be included in such documents. Marriage breakdown affects urban and rural areas, every village is affected. It is thought that at least one member of each household is affected by marital breakdown.

I was a little disappointed to hear in the House that divorce is a woman's issue. It takes two to tango and, therefore, it is also a man's issue, indeed it is a family issue. Nowadays we have the Sunday father who meets his son or daughter on that day and takes him or her to the zoo. These men feel discriminated against socially and by the tax office. Some are being taxed as single men when, officially and legally, they are married according to our law. When it comes to custody of children the judges seem to think that only women are capable of rearing children, this happens in 95 per cent of cases. This is wrong and the judges should look at parental capability rather than at gender to decide who is the best person to rear them.

In the last referendum many people considered the financial impact of divorce. This angle was never clarified and for that reason many separated women voted against divorce, they felt they were better off under the old system. I am pleased that the Minister for Equality and Law Reform, Deputy Taylor, will look into this matter because payment of maintenance needs to be streamlined. At present only 13 per cent of people pay maintenance regularly, the rest pay very irregularly. This always causes problems and affects women's and children's health and indeed family finances.

The method of obtaining a divorce needs to be practical and sensible, it should also be a private matter because, in divorces, a lot of dirt is thrown up. A person may say something which he or she did not really mean and it is construed differently in court. Judges and solicitors should be trained to deal with divorce just as there are specialists in taxation and house sales. We must accept there were always unhappy marriages here. In typical Irish fashion these difficulties were swept under the carpet. People turned a blind eye and often it was pride and concern about what the neighbours would say that prevented a couple from separating. Most of these people lived in what is called an Irish style marriage. They lived as individuals under the same roof, not communicating with one another for perhaps 20 years and using the children to pass notes to one another but when the children finally left home the parents had no reason to communicate.

When I hear of a marriage breaking up I examine different ways of resolving the problem. There is no one specific way of resolving marriage problems. There are increased pressures on people in society today. Even those of us in this House, with its unsociable sitting hours, find ourselves almost married to politics. When politicians return home constituents often call to their door with queries, telephones are ringing and this leaves no time for loved ones. Quite often we are too tired to spend time with our children or to make love to our spouses. This aspect must be examined as well.

Some people might vote against divorce for their own reasons. One of these might be religious beliefs, but the Church is now granting more annulments and it is the State that is preventing a person from remarrying legally. The legality of foreign divorces is also unclear and this must be addressed. People worry about the effect of divorce on children. Children are not blind, they have an ability to understand situations. It is far worse for children to live with two quarrelling parents than to live with one stable parent.

Some would say that people do not put enough effort into marriage. This is not true. Every couple who enters into a marriage feels that it will be for life. Only when the relationship deteriorates, and after many reconciliations have been attempted, do they decide to separate.

Another reason put forward for voting against divorce is that people will divorce for trivial reasons. I was glad to hear the Minister, Deputy Taylor indicate that "Nevada style" marriages referred to by Deputy Mulvihill, will not be allowed. These marriages usually take place among people with high profiles such as film stars and so on and are highlighted in the media. That will not happen here.

Couples in poor marriages cannot see a way out and, therefore, end up quarrelling. These quarrels can be both verbal and physical and quite often the gardaí are called to homes in the middle of the night. I have heard of women taking overdoses or committing suicide because they saw no way out of their problem marriages. It is time we introduced divorce here in order to provide a way out of these marriages. People become depressed if they are constantly quarrelling with one another. They may require counselling or medication and quite often they have to be prescribed tranquillisers because of the stressful situation in which they find themselves. On occasions children have to be taken into care which is costly to the health services.

The problem of unemployment was debated recently in this House. As Deputy Gilmore said this morning, unemployment creates its own pressures and can cause irritability between couples which results in further family problems. We have also witnessed people developing excessive wealth here and there is a trend towards unhappiness within those marriages. There has also been an increase in the rate of alcoholism among women and teenagers. We have seen a lack of discipline in children who get away with a lot if their parents are quarrelling.

As Deputy Keogh said, it is the role of legislators to educate the community and rationalise their fears. Many young people are fearful of entering marriage because of the large number of marriage breakdowns. Many people are involved in second relationships in what might be called social marriages. They may wish to legalise their relationships through marriage though some may not wish to remarry because of the fear that their marriage will break-down — once bitten twice shy. Sometimes when a couple marry the relationship changes and the people involved may become unhappy. No age barrier applies to marriage breakdowns. Many 60 and 70 year old couples are separating because of what is now called the empty nest syndrome. The children of older couples may have grown up and the couple may be left to communicate with one another. They may find that they have nothing to talk about, the children may have kept them together and one partner may decide to end the marriage and leave. Those people must be catered for.

In our society women are more independent now. Men as well as women are being violated. Husband bashing is now quite common. We should remember that women as well as men may be difficult to live with.

I would like to comment on some points raised by other speakers. The legal age of marriage, 18 years, is very young and contributes to the large number of marriage breakdowns. The legal marriage age should be 24 or 25 and people be encouraged not to marry at a young age.

We should also examine pre-marriage courses. Many such courses portray marriage to be like the fairytale of Cinderella where the couple live happily ever after. They do not portray the reality of married life. A practical approach should be adopted in relation to those courses and people should be informed that married life is not easy, it requires much commitment and work on the part of both partners. To people contemplating marriage I would recommend the films, "The War of the Roses" in which Danny de Vito starred and "Kramer versus Kramer" in which Dustin Hoffman starred. Both films have much to offer in this regard.

I would like all Members to canvass to amend the Constitution to provide for divorce which is a civil right. I want my civil right to divorce.

Ms Shortall

It is an unfortunate reality in Ireland that a minority of those who marry have their hopes and expectations dashed through the breakdown of their marriages. A primary concern of the Government must be to do whatever it can to assist the preservation of stable marriages and the avoidance of marriage breakdown. The Government must also ensure that our law and social policies provide a proper response where marriages break-down.

The 1986 census revealed a total of 37,000 persons whose marriages have broken down. The most recent population estimate included in the 1991 labour force survey suggested a figure of about 47,000. However, as a basis for estimating the number of persons who might be expected to avail of divorce, if available in the State, the figures may understate the real position. For example, marriages may have broken down but the spouses may not have separated. The figures do not take into account cases where failed marriages ended in foreign divorce and subsequent remarriage within this country.

I am concerned particularly with the protection and financial support of the spouse and children, especially when a marriage breakdown is the result of violence. In such cases there must be immediate intervention to ensure the safety and welfare of the spouse and children. In violent situations a protection order can be issued, aimed at protecting the spouse and children while the barring order is being granted by the courts. A protection order is available as an interim measure only between the time of application for a barring order and the court's decision on that application. We should examine the possibility that the courts could take the soft option of granting a protection order rather than a barring order which would diminish the existing legal protection of wives and children, the chief victims of family violence.

The legislation in relation to marital rape needs to be examined also to ensure that lenient sentences are no longer handed out in such cases.

When marriages break down very often it can be maintenance that poses the most difficult problem facing the couple or family. At present the provisions of the 1976 Act can force a spouse to pay maintenance where that spouse had formally refused. For example, the courts can order the spouse's employer to make deductions from the employee's wages and transmit them to the spouse entitled to the money. A person who fails to pay can be imprisoned for up to three months once non-payment was not the result of inability to pay. Improvements could be effected to the legislation obtaining. For example, the provisions of the 1991 Act allow maintenance to be increased and reviewed regularly by Government order. We, in Government, must realise the financial difficulties that can result from a broken marriage and carry out a regular review of the maintenance question. It would be a more effective process if, when ordering a maintenance payment, the spouse could also order an attachment of earnings which would ensure quicker payment of the relevant maintenance. There should also be provision to allow the District and Circuit Courts to order secured maintenance and lump sum payments.

The Government should introduce legislation to improve the circumstances of spouses in Ireland receiving maintenance from abroad. In addition, Ireland should ratify a new convention aimed at facilitating the enforcement of maintenance payments throughout the EC as well as acceding to a related 1956 United Nations Convention providing for a central authority system to assist people in obtaining maintenance worldwide.

When a marriage breaks down inevitably ownership of the family home comes under scrutiny. There is need to speed up the introduction of the legislation which would give each spouse a statutory entitlement to an equal share in the ownership of the family home, a real commitment given in the Programme for Government.

When disputes arise between spouses about issues such as custody of and access to their children the courts can take a decision as to which parent should have custody of the child or children. Bearing in mind the large numbers of marriages breaking down the courts must give paramount consideration to the welfare of the children concerned.

The problem of child abduction by one parent increases as more marriages break-down, the court system leaving one parent unsatisfied with the outcome, sometimes resulting in the abduction of the child or children by one parent. The Child Abduction and Enforcement of Custody Orders Act, 1991 gives legislative effect in Ireland to, first, the 1980 Hague Convention on the Civil Aspects of Child Abduction and, second, the 1980 European Convention on recognition and enforcement of decisions concerning custody of children and on registration of custody of children, which go some way to improving the overall position.

The matter of child care is of vital importance in any consideration of marital breakdown. Adequate maintenance goes a long way to providing good child care. But, when one parent is given custody of the child or children, the relevant health boards should make great efforts to promote the welfare of children who might not be receiving adequate care and protection. For example, the 1989 United Nations Convention on the Rights of the Child reflects a broad consensus on the obligations of families, society and international communities to children. I would strongly urge the Government to ratify that convention as soon as possible.

There is a need for legislation to deal with decrees of nullity and the recognition of foreign divorces. I am sure efforts will be made to devise the most suitable legislation and constitutional amendment on divorce here. Such would greatly improve the safety and welfare of spouses and children most affected by the marriage breakdown, which is what concerns me most.

I call on the Government to draft adequate legislation and provide sufficient legal aid so that requisite mediation and/or conciliation services are made available to all our people. All future legislation should centre around the protection, safety, welfare and financial support of the spouse and children. In addition, family law courtrooms and an effective courts system would alleviate somewhat the traumatic experience of marital breakdown.

Minister for Equality and Law Reform (Mr. Taylor)

This has been a very interesting, formidable and valuable debate. I should like to thank all Deputies for their contributions. However, I would have to say I was particularly disappointed by the contribution of the Fine Gael Party, particularly that of Deputy Shatter. Deputy Shatter suggested that the White Paper was a sad and sorry document and accused the Government of failing to indicate a preference for one or other constitutional amendment. Deputy Shatter did not indicate what might be his view or that of his party. I find that unfortunate in the course of a debate which afforded him that very opportunity.

The White Paper on Marital Break-down is far from being a sad and sorry document. It contains some 20 very detailed recommendations together with the scheme of two Bills.

On the question of divorce, the White Paper adopted a realistic approach to an issue which all Deputies agree is a contentious one and open to dis-information. In order to ensure as full and informative a debate as possible this time round on the fundamental issue a number of options were set out to stimulate and provide a framework within which realistic alternatives could be discussed and, ultimately, the best one chosen. Were the Government to introduce a preference at this stage I believe such would pre-empt that debate. By contrast Deputy Keogh made a very constructive contribution, gave the views of herself and her party as to what particular regime of divorce she considered would be appropriate. She referred, I think, to a two-year separation period in the case of consent and a longer period where there was no consent. That is a constructive suggestion.

We must all address ourselves to the parameters within which divorce would become available here. There was much criticism and comment this morning about delays, the Government not giving a lead, the White Paper and so on. Let me be clear about this: the Government most certainly are giving a lead on this. Indeed, they wrote into their Programme for Government, which supersedes the White Paper, that there will be a referendum on divorce held in 1994. They will continue to give a lead right up to the successful carrying through of that referendum on divorce, as I hope it will be successfully carried through. I can assure the House that the Government are committed to that. We will be looking for unified support from all parties.

There was criticism voiced in the House this morning about the extent of the involvement of the Fianna Fáil Party in the 1986 referendum. I will make no comment on that one way or the other; it could have been better. I would have to say — and Dr. Bhamjee referred to this in the course of his contribution — that the contribution of the Fine Gael Party in 1986 was not of the ultimate either.

Miss Flaherty

It was substantial.

Mr. Taylor

There were many dedicated people in the Fine Gael Party in 1986 who made magnificent contributions——

Miss Flaherty

They were very badly treated by the Minister's present partners in Government.

Mr. Taylor

——and indicated their strong support. Certainly I can say — and Dr. Bhamjee confirmed the position in Clare which can be reiterated elsewhere — that the Fine Gael Party's contribution in 1986 also left much to be desired. I hope that when the process is repeated in 1994 Members on all sides of the House will give a full commitment to what I know Deputies Flaherty and Fitzgerald and others in the Fine Gael Party want to achieve.

Miss Flaherty

We had no Frankenstein stalking the land, as the Minister's colleague in Government put it — only the Minister has changed.

Mr. Taylor

At the heart of the debate——

Miss Flaherty

I would like to have read the speech the Minister made seven months ago.

Mr. Taylor

The Deputy knows what I am saying is correct.

Miss Flaherty

The Minister is scoring political points on that old axis.

Mr. Taylor

I know that the Deputy's heart was in the right place.

An Leas-Cheann Comhairle

Deputy Flaherty, the Minister must be allowed to continue without interruption.

Mr. Taylor

There is a general consensus that law reform in this area must be based on a caring, compassionate and realistic approach to dealing with the problems of real people. Before going on to give my response to the specific points that emerged in the debate I would like to assure all Deputies who spoke that I will bear in mind very much what they have said today when formulating my detailed proposals in due course on all the areas covered by the White Paper.

In the context of the proposals in the White Paper it was reassuring and at times sad to hear Deputies relate the hardships that result when marital break-down occurs. As the debate showed, in many cases marital problems can be resolved within the framework of the marriage, frequently with the aid of marriage counselling and mediation services. As I said in my introductory statement — this was a view echoed by many Deputies — we would all like to put on record the most valuable work done by the many organisations providing such services. I would also like to assure the House that means of enhancing the role and provision of these counselling and mediation services will be fully considered by my Department in the context of promoting the resolution of marital difficulties within the marriage.

During the course of the debate a number of Deputies referred to the position of children. As I said in my opening statement, the situation of children represents the most tragic aspect of marital breakdown. The chapters in the White Paper on protection and financial support as well as the chapter on the position of children contain proposals intended to guarantee that children's interests are addressed and protected. I can assure Deputies that the protection and safeguarding of the rights and futures of children will be a principal consideration in the formulation of any legislative proposals I will bring forward. Such a policy consideration can already be found in the Status of Children Act to which I referred previously.

What of the children born in co-habiting relationships between partners one or both of whom have children from a previous marriage? Are these children from the second relationship not entitled to concern? Is there not a contradiction for those — and there are many — who espouse marriage as the best basis for family life and children in particular but deny the children of such relationships the right to have married parents? I wish to assure the House again that in any proposals I bring before the House the position of children will be secured.

Reference was made by a number of Deputies to the question of marriage registration. It is true that the existing arrangements for registration of marriages can give rise to some significant difficulties, particularly where the requirements for a marriage to be valid under Church and civil law differ. The problem regarding a civil registration system is that it may be ineffective in preventing the registration of marriages where one or both parties, though free to marry by the norms of their religion, are not free to marry in civil law. At present my colleague, the Minister for Health, is reviewing the law on the registration of births, deaths and marriages. The question of replacing the existing marriage registration system with a universal registration system will be examined in the context of that review.

Reference was also made to the position in relation to maintenance procedures. My introductory statement set out a number of measures which I propose to take in this area to bring about major improvements in existing arrangements. As I indicated, some of these will arise in the context of the Family Law (No. 1) Bill and others will require separate legislative action to allow ratification of certain conventions which allow for international co-operation in the enforcement of maintenance orders.

During the course of the debate reference was made to the situation concerning the recognition of foreign divorces. While the Domicile and Recognition of Foreign Divorces Act, 1986, changed the basis for establishing domicile because recognition here for foreign divorces requires at least one of the parties to be domiciled abroad, very few foreign divorces will in practice receive recognition here. The White Paper indicates that the question of Ireland ratifying the Hague Convention on recognition of foreign divorces will be looked at again in the light of responses to the White Paper.

There are two proposals contained in the scheme of the Family Law (No. 1) Bill which are relevant to foreign divorces: first, provisions in relation to declarations of marital status will empower the court to make a declaration that a decree of divorce, nullity or judicial separation abroad is or is not entitled to recognition here and, second, the courts here will be empowered to make appropriate financial provision for the protection and support of persons with close connections with this country whose marriage has been dissolved or annulled abroad or a judicial separation has been granted abroad.

During the course of the debate much reference was made to the possibility of an increase in funding for civil legal aid. The White Paper goes into some detail on the question of the civil legal aid scheme. It contains a commitment to expanding and developing the scheme but this has to be done having regard to available financial resources. To put the picture into some context the White Paper points out that since the judicial separation Act came into force the allocation to the board has increased by about £1 million. Also of some significance is the proposal contained in the White Paper to place the scheme on a statutory basis.

As I mentioned in the House recently at Question Time, I am considering the question of involving the private practitioner in the legal aid scheme. This would be of great help in rural areas in particular given that many people who need the service live far away from the nearest law centre or from where one could reasonably expect a law centre to be placed. There is no doubt that a substantial increase in funding is necessary for the legal aid service and the Government is committed to doing everything possible in that regard within the context of the available resources.

On the question of family courts I pointed out in my opening remarks that the Law Reform Commission is looking at this question at present and when its report has been received the matter will be looked at again. It should be remembered in any event that there have been significant developments in relation to family law hearings. For example, wigs and gowns are not worn by judges or lawyers in family law hearings and the law provides, too, that such hearings shall be as informal as is practicable and consistent with the administration of justice. The schemes of both family law Bills included with the White Paper specifically provide that similar arrangements would apply to proceedings under them. Special family court rooms will be provided in future large-scale projects but, as I have already said, this is an issue which will be looked at again.

Miss Flaherty

What about the question of pension rights?

Mr. Taylor

So far as the family courts system is concerned the position in Dublin is not too bad. I only wish that the position in other parts of the country matched it. I am aware however that in many cases it does not. I am also aware and concerned that there are long delays both for legal aid service and in obtaining court hearings. I imagine that the Law Reform Commission will consider the possibility of having a number of judges who would specialise in family law and who would travel around the country to hear cases in the various circuits rather than, as is the case at present, have Circuit Court judges hear criminal, civil and family law cases. I have been informed that in some circuits at least family law comes a very poor third with regard to the work that they have to do.

Another question that will have to be considered is that of the jurisdiction of the courts and whether it would be appropriate to give the District Court some jurisdiction in regard to judicial separation cases. That was a position I advocated when Deputy Shatter's 1989 Bill was being debated but unfortunately it did not receive support. I think that was regrettable because access to the District Court is cheaper and speedier than access to the Circuit Court. In addition, the District Court officers are most helpful to unrepresented people, women in particular who have recourse to them. Many lay litigants, particularly women on their own, receive sympathetic hearings in the District Court and have access to it very quickly. I will bear that point in mind when examining the report from the Law Reform Commission on family courts.

Some Deputies raised the issue of pension rights and how they would be affected by divorce. My colleague, the Minister for Justice, who spoke this morning, referred to occupational pension rights and what might emerge if the people were to approve the introduction of a law on divorce as well as in the context of the proposals in the White Paper on provisions to be made in nullity cases. The White Paper is frank in addressing the complexity of this issue and the very real problems that can arise. This issue will be examined in considerable detail and perhaps it would be appropriate to consider it in the context of other problem areas, such as the taxation and social welfare codes, which Deputies identified as requiring examination to ensure an equitable solution for all concerned having regard to the realities of the situation. I want to assure the House that those issues, the question of social welfare entitlements and the implications of both the income tax code and capital taxation are already being considered in the Department. They will be addressed before we come to the stage of a referendum. That is why I wish Deputies would not put undue pressure on the Government to bring forward the measure which we all aspire to in a half baked form. We must do the groundwork and be in a position to go out there and fight the referendum. It will be a fight — make no mistake about that. As part of the process of dealing with pensions and other connected issues, I intend to examine the legislative experience in other countries to obtain the benefit of any lessons that can be learned.

I was heartened to notice that most Deputies refrained from the often cited — but unsubstantiated — view that providing for divorce would inevitably and quickly make it a social norm. This is somewhat akin to a previously voiced view that admitting to the existence of marital breakdown would in some way lead to an avalanche of breakdowns and the end of society as we know it. Holders of that view belong to the school of thought that if you ignore a problem it will simply go away. We know to our cost that it will not, it simply becomes worse and creates an increasingly wide gap between what passes for legal norms and actual contemporary social practice. I will return to this point before concluding.

On the specific issue that the introduction of provisions for divorce would open the floodgates for the destruction of marriage I continue to remain totally unconvinced by such a notion. Studies from abroad suggest that the introduction or liberalisation of divorce laws have only a marginal impact on marital stability. Other factors, such as increasing urbanisation, changes in cultural attitudes and more significantly changes in economic power and the status of women are much more direct causal factors. Further, to accept the argument about the inevitability of divorce once introduced becoming increasingly easier is to demonstrate a lack of confidence in ourselves as legislators and in the people generally. If we are to be serious about dealing with issues in a mature way, we must have confidence in that maturity.

I will now deal with the relationship between social policy, individual behaviour and law reform. Changes in society must be reflected in social policy objectives that provide the relevant basis for principles of law reform. The existing law on marital breakdown has a particular ideological basis but as legislators we must continuously monitor whether the laws embodying that ideology continue to reflect individual behaviour and the desire of the people for amending law to better reflect social reality. Laws which remain stubbornly resistant to change in the face of significant contradictory behaviour by people are doomed, not just to irrelevancy but to create a climate of disrespect for law in general. As my colleague, the Minister for Justice, said in her contribution "the contributors to the debate enumerated the many legislative changes that have already taken place in the realm of marital breakdown in recent years." I, like other Deputies, welcome this development at both a policy and political level. It is right that legislators should legislate in these important areas of social concern.

The proper stage for law reform is the Oireachtas. For too long, Government and the Legislature lacked the courage to lead in these areas. The White Paper and the commitment to law reform in the Programme for a Partnership Government are clear statements of our intention and commitment to make the Oireachtas centre stage for contemporary issues of social policy and to make legislation the principal instrument of the required law reform.

The Dáil adjourned at 3.5 p.m. until 2.30 p.m. on Tuesday, 30 March 1993.