Tairgim: "Go léifear an Bille an Dara hUair."
I move: "That the Bill be now read a Second Time."
The debate which we are beginning today represents the culmination of many years of determined and dedicated work towards addressing the problems of those whose marriages have broken down. Many tens of thousands of our citizens are involved in marriages which have broken down beyond hope of reconciliation, and which have in fact, if not in law, irretrievably come to an end. It is their welfare that I wish to place at the heart of today's debate, and the debate which faces us in the weeks to come.
A referendum on a Bill to amend the Constitution is a particularly solemn legislative procedure, involving the agreement of this House and the Seanad as a preliminary step to seeking the consent of the people. Governments do not propose constitutional amendments lightly or without care or examination. The Bill which I commend to the House today has been the subject of the most extraordinarily detailed legal and policy examination over many months prior to its publication.
This Bill is the latest stage of a careful and detailed programme of family law reform which has been pursued by successive Administrations. Under each and every Government over the past decade, including Governments involving both Fianna Fáil and the Progressive Democrats, as well as the three parties now in Government, this careful package of legal reform has been constructed.
Eighteen pieces of legislation have been introduced. All of the issues arising on marriage breakdown have received attention — except the issue which this Bill is designed to address, the right to remarry.
Much of the detailed work in preparing this Bill was done by the Cabinet sub-committee on divorce, and I would like to pay particular thanks to the members of that sub-committee, the Ministers for Finance, Health, Social Welfare, Justice and Defence and the Marine and the Attorney General, for the careful and detailed way in which the putting together of these proposals was approached.
This Bill is accompanied by a Government paper, entitledThe Right to Remarry, which sets out the detailed implications of divorce in relation to financial and legal issues such as maintenance, succession and pensions. That paper also contains the full text of a 39-section draft Bill which would be introduced by the Government following a “yes” vote.
In drawing up this draft Bill, and the associated Government paper, I and the staff of my Department have built upon the work of previous Administrations, but particularly on the White Paper on Marriage Breakdown published by the then Minister for Justice, Mr. Pádraig Flynn, in September 1992. Mr. Flynn's paper was an excellent basis for the Government's work during the three years which followed its publication, and I would like to take this opportunity to pay tribute to him for his key role as Minister in laying the groundwork for today's debate.
The White Paper set out the 1992 status of the work in progress on family law reform. TheRight to Remarry paper sets out the 1995 position, and I believe it represents an exceptionally comprehensive survey of all of the issues of interest to people in connection with divorce. In order to ensure wide access to the Government's information paper, I am arranging to have copies of the paper sent to every public library in the State, and every citizen's information bureau in the NSSB network, where it will be available for consultation.
The Government has made a clear and reasoned case in favour of this amendment. We will set out this case with integrity and commitment. We have constructed a detailed legislative basis for the proposed amendment which we now bring before this House for approval. We will set out our case for this amendment here and in every other forum available to us, in the confident belief that the Irish people will take this opportunity to vote "yes" for the right to remarry. The Government has a duty and a responsibility to give the people all of the information they need in relation to this issue, and in relation to family law entitlements generally, and we will discharge that duty fully. This Bill is not about party politics, about positioning oneself to appeal to this or that section of the community, or to maximise the benefits to oneself and it is not about scoring a political success. The only success that matters is success for the approximately 75,000 people involved in broken marriages in putting their lives and their legal affairs in order at last.
The Government welcomes the detailed debate on marriage breakdown. Ever since the decision to prepare a White Paper on Marriage Breakdown more than three years ago, family law reform has been high on the agenda of Governments. The high priority given to family law has given rise to a sustained degree of analysis and debate. a healthy and positive development. The debate in this House today is neither the beginning nor the end of that national debate on marriage and the remedies for its breakdown, but it marks a distinct phase in the Government's commitment to come to terms with social realities which have been ignored for so long.
I cannot but observe that those who are sometimes loudest in calling for debate on this issue do not always give enough recognition to the debate which has already taken place. Today we are not for the first time on a journey into unexplored legal territory. Rather we are jumping on a moving train, which has already traversed a vast expanse of family laws and family services.
In the sequence of events which led up to today's Bill, the role of Deputy Alan Shatter, must be recognised. His far-seeing decision to introduce the Judicial Separation and Family Law Reform Bill in 1987 led to the enactment of the 1989 Act, which in turn became one of the principal foundations of the Family Law Bill, 1994, and the draft Family Law (Divorce) Bill, 1995.
The development of services for the family and its members has also been an essential part of the Government's comprehensive approach. The Government PaperThe Right to Remarry sets out a number of the very many improvements in family services which have been made since the establishment of the Department of Equality and Law Reform in January 1993. Since then, funding to marriage counselling services has dramatically increased, and the counselling sector has been revitalised. The Family Mediation Service has seen its funding more than doubled and a development plan put in place. The Legal Aid Service has seen its most radical nationwide expansion since its establishment 16 years ago.
In developing these services, and in strengthening our family laws particular priority has been given to the protection of the welfare of children. The rights and welfare of children will continue to be a priority for my Department and for Government. I have asked my Department to undertake a review of the laws on guardianship of children generally, and I will give detailed consideration in that context to the helpful submission on children and marriage breakdown published yesterday by Deputy Michael Woods.
The Government has also taken the opportunity to look at divorce laws in other countries, and to see how we can address in an Irish context the concerns about some of those laws.
We are determined to protect and support the institution of marriage and the family in so far as is possible. We wish to ensure that divorce will not be available on an easy or casual basis. We wish to guarantee that there will not be an adjustment or easing of the basic grounds for divorce without reference to the people. For these and other reasons the Government has decided to propose to insert the basic conditions for divorce in the Constitution. The people are acutely aware of their relationship with the Constitution. They are its ultimate guardians and they appreciate that the Government is not seeking to take to itself the power to change, or make easier the grounds for divorce. Instead, the Government is inviting the electorate to support a form of wording which cannot be changed without further consultation with the people. This is the essence of democracy in action, and reflects an approach which has been considered carefully.
The overwhelming majority of people who marry do so with idealism, hope and determination to make it work. Some marriages have clearly irretrievably broken down. Many of the people affected have gone on to form subsequent long-lasting relationships within which children have been born. The adult partners in such relationships have few legal protections in our society. They and their children are denied the sense of worth which comes from being a fully recognised family within the community although they are such a family in every way except in the eyes of the law. One consequence of this referendum proposal, if it is approved by the people, is that it will enable these individuals to take on the dignity and status which is properly theirs.
This Bill proposes that Article 41 of the Constitution be amended so that a court may grant a dissolution of marriage only where it is satisfied that each of a number of specific conditions has been fulfilled. The first of these is that, at the date of the institution of the proceedings, the spouses have lived apart for a period of, or periods amounting to, at least four years during the previous five years. The term "living apart" is used in the Judicial Separation and Family Law Reform Act, 1989, and it is also a familiar term in many other jurisdictions where it has been held that this phrase will clearly cover where the spouses have physically separated and are living in different places. The case law also states that where domestic life is not shared it is possible for there to be two households under the one roof. The term "living apart" has a clear and settled meaning in the law, and I am satisfied that the courts will follow this meaning in a divorce context.
The amendment also provides that the four-year period of separation can be cumulated over a five-year period. The reason for this is to allow a couple to make a reasonable attempt at reconciliation in the knowledge that, if it does not work out, they will not have lost their option to apply for divorce. The four year period itself is a guarantee that spouses will not enter into divorce lightly, and that they will have the necessary time to reflect on the serious step which they are undertaking. It may also encourage spouses to attempt to reach agreement on the terms of their separation in a way which will ensure that, if the divorce application does come before a court, many of the key elements relating to children, finance and property may already have been settled between the spouses. In this way, the hearing itself may well be less acrimonious than it otherwise might be.
Under this amendment, the terms on which individuals may obtain a divorce are real and substantial. There will be no "quickie" divorce under this amendment. There will be no divorce culture under this amendment. I have confidence in the innate common-sense of the vast majority of Irish people to make a judgement that the Government's response to the problem posed by the inability of people in second relationships to remarry, which arises due to the absence of divorce, is a balanced and measured one.
If the referendum is passed and divorce is introduced, people will not be able to enter into a marriage in the expectation that, if problems arise, divorce will offer them a speedy way out of their difficulties. The terms of the constitutional amendment reflect this society's awareness that marriage is a process, that it needs to be worked at, and that it is intended to be a lifelong commitment. However, where that commitment has come to an end, not today or yesterday, but many years ago, it is a denial of what we understand by marriage to demand that both spouses continue to be bound by a legal relationship which is devoid of real meaning.
The second condition of which a court must be satisfied before a divorce will be granted concerns the absence of any reasonable prospect of a reconciliation between the spouses. The fact that solicitors for both parties will already have discussed the prospects of reconciliation with their clients will, in most cases, be sufficient to indicate whether a genuine possibility of reconciliation exists. Clearly, if such a possibility exists, a divorce cannot be granted. That is also the reason legislation will specify that the divorce proceedings may be adjourned at any time to enable the spouses, if they both so wish, to work towards a reconciliation.
The third condition in the amendment is designed to ensure that vulnerable spouses and dependent children are provided for. It ensures that the court must be satisfied, having regard to the circumstances, that proper provision exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law. This last phrase is designed to cover a child where a spouse isin loco parentis, for example.
As will be seen from an examination of the terms of the draft family law (divorce) Bill, the court will have extensive powers at its disposal, which parallel those already available to it in the context of judicial separation, to make financial and property adjustment orders in a way that is designed to do justice to both parties and to any dependent children of the family.
These powers include the ability to make a maintenance order which can be either periodical or a lump sum payment. Orders for the direct deduction of maintenance out of the paying spouse's earnings may be made. A property adjustment order, whereby property may be transferred either to a spouse or to a dependent child of the family is also possible. Detailed provisions will govern the position relating to occupational pensions so that, for example, a court may "earmark" a portion of the retirement benefit of the spouse who is a member of a pension scheme. In this way, when that person dies, the benefit will be paid directly to the former spouse. It will also be open to a former spouse to "split" the pension benefit so as to create an entitlement to an independent and separate benefit. The position with regard to succession rights is also dealt with comprehensively.
The draft divorce Bill also provides, as does the current legislation which allows for judicial separation, that in the making of all financial and property orders the court must have regard to a very broad range of matters so that the circumstances of both spouses can be evaluated in full. In particular, the vital contribution of a spouse who has chosen to look after the home and care for the family cannot be overlooked and must be taken into account by the court when it comes to the overall adjustment of property.
The fourth condition in the amendment is that a court must be satisfied that any further conditions prescribed by law are complied with. In the draft divorce Bill, an example of such a condition would be the condition that the Irish courts could dissolve a marriage only if one spouse had been living in Ireland for a year or was domiciled here when the case began.
This Bill, as I have already indicated, cannot be seen in isolation. It has been preceded, over the past decade, by a raft of legislation in the family area which is designed to support the family, both materially and otherwise. It is accompanied by a draft Bill which clearly spells out the detailed provisions which would apply if divorce is introduced here, In addition, counselling and mediation services are in place which will assist couples who wish to obtain guidance in resolving differences in their marriages or who are willing to negotiate separation agreements on an amicable basis.
Legal aid will be available to individuals seeking a divorce in the same way as it is now available to persons seeking a judicial separation.
The Social Welfare (No. 2) Act, 1995, ensures that a divorced person will not be at a loss in terms of his or her social welfare entitlements. Detailed taxation provisions have been devised which, in essence, will mean that divorced couples will be treated the same way for income tax purposes as separated couples. Similarly, property transfers between former spouses on foot of a court order governing a divorce settlement will be exempted from all capital taxes. Taken together, these provisions amount to a package which ensures that divorce, if introduced here, will be underpinned by firm legislative supports and will not operate in a vacuum.
I am pleased to be able to inform the House that the Department of Foreign Affairs is making arrangements on my behalf to ratify the UN and European Union conventions on maintenance within the near future. This will enable me to make an order giving effect to the maintenance Act shortly.
When the body of family legislation which has been put in place over the past decade is taken as a whole, and put in the context of the comprehensive package of services and measures developed by Government, one fact, essential to this debate, is highlighted. The problems of marriage are with us already. The costs of marriage breakdown, both social and financial, are with us already. Those problems and costs must be faced by society, independently of the proposed referendum, and that is what we have been addressing over the past decade. What this Bill proposes to add is to give legal recognition to the fact that unfortunately some marriages can and do irretrievably come to an end, and to enable the option to be given to the parties, if they so wish, to remarry.
This House has a duty to approach this issue with responsibility and care. There will be many voices who will urge on us a narrower view of our responsibilities as parliamentarians, or who will put forward closed or curtailed versions of society or our social objectives. But our role is to take the broad view — to address the welfare of the people and the reality of their lives, even where that reality has fallen short of their hopes and aspirations.
Members of this House are asked on an almost daily basis to help people experiencing legal, administrative, or practical difficulties of one kind or another. We know as well as anybody the extent of the problem of marriage breakdown that exists in Ireland today, and the increasing difficulties being created by the failure of the law and Constitution to recognise the reality of that problem.
For all of these reasons, the Government has brought this Bill before this House and is seeking the approval both of the Houses of the Oireachtas and of the people for our proposals. I hope, in the weeks ahead, that while Government and Opposition will inevitably have differences in emphasis, we can find common cause in seeking a "Yes" vote in the referendum in November.
The weeks ahead will provide many opportunities for us to set out our case with clarity and detail. I am confident that when the Irish people are asked, as they will be on 24 November, whether they are willing to recognise in law the situations of so many tens of thousands of people in this country, and to accord to them, if they so wish, the right to remarry, the answer they will give will be "Yes".