Donal Carey
Question:7 Mr. Carey asked the Minister for Equality and Law Reform whether his planned programme in preparation for the proposed referendum on divorce has altered as a result of the recent Supreme Court decision.
Ceisteanna—Questions. Oral Answers. - Proposed Divorce Referendum.
Donal Carey
Question:8 Mr. Carey asked the Minister for Equality and Law Reform whether he will consider the establishment of a Commission on the Status of Children.
Helen Keogh
Question:9 Ms Keogh asked the Minister for Equality and Law Reform if he has satisfied himself that an adequate legislative framework will be in place to allow the proposed divorce referendum to proceed as promised in light of the findings of the Supreme Court in relation to the Matrimonial Home Bill and his statement that the Bill is one of the measures included in the major programme of family law reform which will culminate in the refseach-- erendum on divorce; and if he will make a statement on the matter.
Pat Cox
Question:14 Mr. Cox asked the Minister for Equality and Law Reform if he has satisfied himself that an adequate legislative framework will be in place to allow the proposed divorce referendum to proceed as promised in view of the findings of the Supreme Court in relation to the Matrimonial Home Bill and his statement that the Bill is one of the measures included in the major programme of family law reform which will culminate in the referendum on divorce; and if he will make a statement on the matter.
Liz McManus
Question:16 Ms McManus asked the Minister for Equality and Law Reform the provision he intends to make to cater for the needs of children in a family where marriage has broken down and the couple are seeking divorce in view of the commitment made in relation to the divorce referendum.
Proinsias De Rossa
Question:17 Proinsias De Rossa asked the Minister for Equality and Law Reform if he has completed his round of meetings with party leaders regarding a possible consensus approach to the proposed referendum to remove the constitutional prohibition on divorce; the results of his meetings; when, in view of these meetings, the Government will introduce its definitive proposals; and if he will make a statement on the matter.
Helen Keogh
Question:18 Ms Keogh asked the Minister for Equality and Law Reform the steps, if any, he has taken to date to prepare legislative proposals on divorce; the discussions, if any, he has had on the matter; the interest groups with which he has been in contact; and if he will make a statement on the matter.
Mary Harney
Question:21 Miss Harney asked the Minister for Equality and Law Reform if, in view of newspaper reports (details supplied) regarding requests for a deferral of the promised divorce referendum this autumn, he will clarify the Government's intentions on the matter.
Máirín Quill
Question:23 Miss Quill asked the Minister for Equality and Law Reform if he has considered recent reports which suggest that children of separated parents suffer more than those whose parents remain together despite marital problems; if he has a body of research on the matter; and if he will make a statement on the matter.
Máirín Quill
Question:27 Miss Quill asked the Minister for Equality and Law Reform his views on whether regulating the property aspect of marriage breakdown must be an integral part of the background to any equitable Divorce Bill.
Jim O'Keeffe
Question:35 Mr. J. O'Keeffe asked the Minister for Equality and Law Reform the proposed date for the divorce referendum; the information campaign planned prior to that date; and the steps, if any, he proposes to take to ensure a balanced debate on the issue.
I propose to take Questions Nos. 7, 8, 9, 14, 16, 17, 18, 21, 23, 27, and 35 together.
I indicated in reply to questions on 3 November 1993 that when I had concluded my round of consultations with party leaders and interest groups and had the opportunity to take their views into account I would bring forward my proposals on divorce for decision in due course by the Government. I have now completed my series of meetings with Opposition parties. However, there are still other groups which I propose to meet in the near future.
The White Paper on Martial Breakdown has helped to focus attention on various options for amendment of the Constitution and sets out the details of possible divorce legislation including the substantial powers which the courts would have to make orders in support of dependent spouses and children. The White Paper sought views from interested groups and individuals and the wide range of submissions which have been received are being taken into account in the context of finalisation of my proposals. I took the opportunity, since coming into office, of writing to a number of groups to elicit their views on the matters raised in the White Paper and the replies I have received in response to that initiative are also being carefully examined. I can say also that all aspects of divorce are being looked at not only in my Department but in other Departments also which are involved. The clear intention of the Government is to deal with matters as comprehensively as possible in the lead-up to the referendum and to face all issues in a considered and responsible way.
The definitive proposals of the Government for an amendment of the Constitution on divorce will, of course, be in the form of a Bill since a precondition of the holding of any referendum is the initiation of a Bill in the House. The date of publication of the Bill will, to a large extent, be determined by the date on which the Government proposes to hold the referendum. It is the Government's intention to proceed with the necessary legislative framework as quickly as possible with a view to the holding of the referendum in the autumn. I have already indicated to the House in reply to questions on 15 February 1994 that, as in the case of previous referenda, the Government intends to pursue an information campaign in the run-up to the divorce referendum.
The timescale for the divorce referendum has not been affected by the decision of the Supreme Court on the Matrimonial Home Bill. While the court's decision on that Bill was a disappointment to many, including the Government, I should like to emphasise that the policy which informed it was supported by successive Governments, and it was not framed so as to deal with instances of marital breakdown, be they separation or, for that matter, divorce, in the event of divorce being introduced following a referendum. On the contrary, the Bill was aimed at the situation within stable marriages. It was given priority in the Government's legislative programme and it formed part of the Government's programme of family law reform. Having regard to the Supreme Court's decision, it cannot now become law and, accordingly, the Government's decision is that it cannot proceed any further with the policy of that Bill.
I am now giving priority to the other aspects of the Government's wide-ranging programme of family law reform. This involves at least three Bills, expansion and development of the legal aid system and of mediation services and increases in funding of counselling services. One of those Bills — the Family Law Bill, 1994 — is before the House awaiting Second Stage. It is one of the most extensive of family law Bills to be initiated in recent times. It has measures aimed at protecting and safeguarding the institution of marriage and it provides substantial powers to the courts to deal with the financial consequences of marital breakdown in certain cases. Those powers will in substance be the same as the powers in any divorce legislation and they include wide powers in relation to maintenance, lump sums and property generally, including the family home and pensions.
The position regarding children in the case of marital breakdown is of special importance and our constitutional and statutory provisions and administrative policies reflect that. The Guardianship of Infants Act, 1964 provides that any court in deciding questions relating to children shall regard the welfare of the child as the first and paramount consideration. The law in relation to children has been updated and developed on a systematic basis in recent years and we have a body of law that is comparable with the best in other countries. Important provisions in relation to children have been provided for in the Family Law (Maintenance of Spouses and Children) Act, 1976, the Family Law (Protection of Spouses and Children) Act, 1981, the Status of Children Act, 1987, the Judicial Separation and Family Law Reform Act, 1989, the Child Abduction and Enforcement of Court Orders Act, 1991 and the Child Care Act, 1991. A White Paper on education is being prepared in the Department of Education and a Juvenile Justice Bill is being prepared in the Department of Justice. The Family Law Bill, 1994 which I have initiated has important provisions in relation to maintenance of children. A Bill is also being prepared in my Department to strengthen the law on domestic violence. Having regard to the extensive provisions which already exist in our laws in relation to children which are being constantly reviewed and developed by the relevant Departments, the question of the establishment of a commission on the status of children is not at present in comtemplation by the Government.
I am aware of recent case studies in England of 152 children and their parents which seem to indicate that the children of separated parents may do better if the parents remain with them in the home. I am also aware of a larger ongoing study in England of 17,000 children which has found that where there is parental conflict in the home it tends to be better for the children if the parents live separately from each other. Under the law as it stands in this country, before granting a decree of judicial separation, the court must be satisfied that provision exists or can be made for the welfare of any dependent children of the family and, on granting a decree, the court must, in considering the matter of occupancy or sale of the family home, have regard to the welfare of the family as a whole and to the circumstance that it may not be possible for the spouses to continue residing together.
Deputies would probably agree that the policy of that law is sound, on the basis that where the parties cannot reach agreement on the terms of separation the court is allowed to make orders on the basis of all the evidence before it in each case with particular reference to what is best for the children.
On a point of order, the Minister rushed through the numbers of questions he is taking together. I am not agreeable to all these questions being taken together.
It is normal practice. The Chair is concerned about interruptions. Time is very precious in dealing with priority questions.
I realise that and I do not mean to cut across the time of other questions——
The Deputy is doing that.
——but I am concerned——
I am calling Deputy Carey and I will call the Deputy next to put her questions.
The Minister indulged in a Second Stage speech, which illustrates the weakness of his case. When the Government was formed a Programme for Government was set out in which the Government proposed to hold a divorce referendum. I believe that the timescale for the holding of this referendum is unachievable. There are a couple of reasons it will not be possible to hold the referendum in October, one of which is that the Government is divided on this issue. Most members of the Government opposed divorce in the last referendum and not one has made a statement in support of the proposed referendum. While the Minister has done a good job as a persuader — he listed out all the things he has done — it will not be possible adequately to inform the electorate before the holding of the referendum in the autumn.
I welcome Deputy Carey to his new post as spokesperson on equality and law reform.
For a brief period.
I look forward to having many interesting exchanges with him. There is no reason that the timescale for the referendum will not be met. Legislation is in hand. The Family Law Reform Bill, one of the main Bills required to be put in place, has been published and Second Stage will probably be taken this week. I am sure, with the co-operation of Deputy Carey and other spokespersons on equality and law reform, it will speedily be enacted. Other measures will also be ready. As the Taoiseach indicated, it is the Government's intention to proceed with the referendum in the autumn. I am sorry to disappoint Deputy Carey by telling him that the Government is entirely united on the holding of the referendum. It is set out in the Programme for Government and the Taoiseach, on many occasions——
Will he be on the platform with the Minister?
——including in his Árd Fheis speech, made positive references to Fianna Fáil support for the divorce referendum. The Government recognises the need for this referendum. My concern is not about the Labour Party or the Fianna Fáil Party, but I am beginning to have reservations about the attitude of the Fine Gael Party. I trust that the policy outlined by the Deputy's predecessor and other spokespersons for that party will remain the policy of Fine Gael. If not, they should spell out their policy on this issue. I expect the support of parties on all sides of the House on this important national issue. That support has been previously signalled.
I wish to refer to two issues, the first of which relates to the Matrimonial Home Bill, which was dropped by the Minister like a hot potato. It has been said that the fact that this Bill was rejected by the Supreme Court was a rebuff to the Dáil. However, we must remember that all sides of the House accepted this legislation. It is up to the Minister to bring forward legislation that is acceptable to the Supreme Court. I hope he is not inferring that his Department has neither the interest nor the expertise to pursue that matter. When the Bill was considered by the Supreme Court it was not the principle that was at issue, it was, and I quote——
I want to assist Deputy Keogh in eliciting information, but she may not quote. I would prefer if she would proceed by way of supplementary questions.
I will defer to your ruling on this matter. It is the principle of this issue we are concerned with, and I ask the Minister to take that on board. He should not simply ignore the Matrimonial Home Bill and pretend it never existed. The Minister knows my feelings on the divorce referendum and I have assured him of my support and that of my party on the issue. However, has he considered that there are grave reservations on the part of many people in this regard? In the light of the legislation that is about to come before the House, is the Government secure in the belief that the referendum can be successful?
With respect to Deputy Keogh, I would point out that it was not I or the Government who dropped the Matrimonial Home Bill, as she put it, like a hot potato; it was the Supreme Court that dropped it. The Government and all parties in the House were supportive of the Matrimonial Home Bill and the concept it enunciated. but regrettably, to my disappointment and that of the Government, the Supreme Court found that it was not admissible under the terms of the Constitution. I, together with the Attorney General, very carefully considered that judgement word by word, paragraph by paragraph, and by reason of the statement made by the Chief Justice in delivering the judgement of the Supreme Court, it was not possible to recast the Bill in a form that would bring about the possibility to introduce an automatic joint ownership in the family home. Regrettably, that was not possible by reason of the way in which the judgment was framed.
While the Matrimonial Home Bill was an important plank of the Government's family law reform programme, a Bill which the Government very much wanted to enact and to which I and my Department devoted extensive energies over a period of time, it is not a measure that directly refers to the divorce referendum. That Bill was intended to deal with stable marriages, not marriage breakdown. In the case of marriage breakdown not only are the family home and contents on the table for division by the courts but all the property of the marriage, including the family farm, business bank accounts and so on. That has been the position since the Judicial Separation Act, 1989, and will continue to be the position under the Family Law Bill, 1994, which also includes pensions. In the case of marital breakdown, the family home as well as all other assets of the marriage are on the table for division by the courts in the appropriate manner.
The time is fast running out for dealing with priority questions. There are two remaining questions which the Chair is anxious to dispose of and I appeal for brevity.
I will be very brief. The principle of joint ownership was not rejected by the Supreme Court, and it is up to the Minister to come back with legislation in that regard. Notwithstanding his view about that legislation, the Minister said it was one of the measures included in the major programme of family law reform to which the Government is committed and which will culminate in the divorce referendum. Is what he said then true or is what he is saying now true?
The only way in which the principle of the Matrimonial Home Bill, namely, automatic joint ownership of the family home, could be achieved is by having a separate referendum to amend the Constitution. I considered that option and it was discussed by the Government. However, the view was it would not be appropriate or advisable to hold a second referendum on that issue. No doubt all parties in the House will have an opportunity to discuss a general review of the Constitution at some future date and the matter could be considered in that context.
As I said, the Matrimonial Home Bill was an important plank in the Government's family law reform programme, but it applied to a position of stable marriages. It was not a condition for proceeding with the divorce referendum for the simple reason what when the courts decide cases of marital breakdown, separation and divorce, if that comes to pass, the most likely outcome is that the family home will not end up in the joint ownership of both spouses but will be ordered to be transferred in its entirety to one of the spouses, usually the wife. This is only right and proper and is being done in many cases. That is a much more likely outcome than a joint ownership arrangement in cases of marital breakdown. This proves my point that the Bill applied to stable marriages; the intent was to give women who work in the home joint ownership in it. Unfortunately, due to no fault of any party in this House who all wanted this measure — many Governments going back over ten years also wanted to achieve this position — our intentions in this area have not proven to be realisable.
There may be other measures which can be considered on a different basis, not on an automatic joint ownership basis. My Department is carefully considering other options in regard to property which will not require constitutional amendment. If a decision is made to proceed along those lines and it is possible to do so, an announcement will be made to the House at the appropriate time.
Question No. 10.
A Leas-Cheann Comhairle——
I am moving on to Question No. 10. The time for Priority Questions——
I must protest. The Minister——
I call Question No. 10 in the name of Deputy Carey.
I tabled two Priority Questions——
The Minister to reply to Question No. 10. The time for dealing with Priority Questions is exhausted.
I have other ways of dealing with this matter. I object to your ruling, a Leas-Cheann Comhairle.
Please, Deputy Carey——
I object to your ruling.
——I am endeavouring to facilitate the Deputy's Question No. 10.