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.