An Bille um an gCúigiú Leasú Déag ar an mBunreacht (Uimh. 2), 1995: An Dara Céim (Atógáil). Fifteenth Amendment of the Constitution (No. 2) Bill, 1995: Second Stage (Resumed).

Thairg an tAire Comhionannais agus Athchóirithe Dlí an tairiscint seo a leanas inniú:

"Go léifear an Bille an Dara hUair."

The following motion was moved today by the Minister for Equality and Law Reform:

"That the Bill be now read a Second Time."

Atogadh an díospóireacht ar leasú a 1:

Go scriosfar na focail go léir i ndiaidh "Go" agus go gcuirfear an méid seo a leanas ina n-ionad:

"ndéanann Dáil Éireann—

(i) ós eal di mian iliomad daoine an Bunreacht a leasú tríd an gcosc iomlán ar an gcolscaradh a aisghairm, agus

(ii) ós í a tuairim go mbeadh sé neamhiomchuí coinníollacha mionchruinne sonracha chun colscaradh a thabhairt a chur isteach sa Bhunreacht,

diúltú anois an Bille a léamh an dara huair.".

Debate resumed on amendment No. 1:

To delete all words after "That" and substitute the following:

"Dáil Éireann—

(i) conscious of the desire of many people to amend the Constitution by repealing the absolute ban on divorce, and

(ii) being of the opinion that it would be inappropriate to insert in the Constitution detailed and specific conditions for the granting of divorce,

declines now to read the Bill a Second Time.".

—(Deputy Keogh.)

Mr. Sargent

Ba mhaith liom mo bhuíochas a ghabháil ar dtús leis an Teachta Costello as a chuid ama a roinnt liom. Cé nach n-aontaím go hiomlán le gach rud a dúirt sé, beidh mé i ndeireadh thiar thall ag vótáil ar son colscaradh nuair a bheidh sé ós comhair an phobail.

The Green Party has supported the lifting of the constitutional ban on divorce for many years. This referendum is long overdue. It is a pity it has been framed in such a way as to ensure that the legal profession stands to gain considerably from the litigation which will result from dealing with such a complicated issue in the Constitution.

I speak as a Green Party TD but also as a former teacher. Proposals from the Government, other parties and interest groups should emphasise the welfare of children in any arrangements to prevent marital breakdown. When breakdown is unavoidable, the situation should be dealt with in the most humane and understanding way possible. It is important to remember that it is the breakdown of marriage which damages families and children. The results of that are known to all of us in this House and many people outside. Divorce is a symptom, or perhaps a partial solution, but it is breakdown which we must try to prevent and for which we must provide.

I have been calling on the Minister for Equality and Law Reform to improve mediation services since I entered the House. I have also called for family mediation, not simply mediation for couples, and I have stressed that this should be properly resourced. The training of people who work in mediation and counselling is vital because it must be a professional service. I feel strongly about this; further work is required in the area.

As a Green Party spokesperson, I have been shocked at the lack of conviction I have detected in a number of the Government spokespersons when advancing the arguments for or explaining the Government's proposals. I know the Minister will disagree because he has worked on this for so long. However, he depends on other Government spokespersons to put the case and they have not been quite as strong as those in Opposition when participating in television and radio programmes and in the media generally.

I am further shocked that, rather than training the Government to speak with conviction on its own proposals, a large quantity of the taxpayers' money is being provided to repeat to a large extent the injustice done during the Maastricht referendum when the Government line was forced through by the expenditure of large sums of money on PR. This will not result in the harmony we would like to see in society following the result of the referendum. It is as well to avoid the type of recrimination that can result when the Government adopts a blatantly partisan approach to a referendum. Acknowledging that there has been some review of the Government's one-sided campaign, I still believe that we have not seen the spirit of fair play in the referendum as yet.

For all those reasons I welcome an article in The Irish Times today by Vincent Browne. He sets out a number of the arguments which should have been advanced by Government spokespersons but which seem to have been left for articulation by somebody in the media. While that person may have some time to think about what they have to say, it is important that the Government has answers for people who try to argue against lifting the ban on divorce.

I am disappointed that the Constitution is being used by the Government as a kind of smoke screen to facilitate a complicated change when legislation could and should have been used to greater effect. The Constitution is becoming a weighty document and as such is being demeaned. A constitution of any organisation, not to mention a country, ought to be as short and concise as possible. It should not deal with complicated matters which are more properly dealt with in legislation.

Some commentators who are opposed to the lifting of the ban confuse the Constitution with the bible. They are very different documents with different purposes. People should remember that the bible can be interpreted in many different ways and it is irresponsible to use it as something with which to bash people who disagree with the views of the majority church in this country. We are here to speak for all the people. In the media one sometimes hears mention of "the church" as if there was only one church. It is important to stress the pluralist context in which we are dealing with this issue.

I believe in democracy and also that TDs should be made account for their views on this referendum. I therefore believe I have no choice but to support the PD proposal which will force a vote in the Dáil. In that way people outside the House can see how Deputies view this referendum. This is my reason for supporting that proposal. If there is no vote in the Dáil on such issues, it is another indication that the claim of transparency we often hear about is empty and indeed absent. I hope Deputies will be allowed vote on the matter and express to the electorate exactly what they think before they ask the electorate to do the same.

Mr. T. Kitt

I pay tribute to the Minister, Deputy Taylor, for the steady preparation in which he has been involved in bringing this Bill to this House. In many ways it has been low key but it has been thorough. I have said this outside the House in the past. I also pay tribute to the manner in which he introduced the Bill today by acknowledging, quite rightly, much of the work done by previous Governments and Ministers.

In many ways divorce and the proposed referendum mark a defining moment in the development of modern Ireland. The outcome of the referendum will reflect how we in Ireland approach not only the tragedy of marital breakdown but, on a deeper level, how we view the complex relationships between church and State, religion and law and between the majority of our people and minority groups.

Unhappy and tragic marriages are nothing new. Violence, abuse and neglect have haunted many families in the past and, unfortunately, will do so in the future. For one reason or another persons find that they can no longer cope with the relationship from which love has gone, if it ever existed, and which is replaced by loneliness, fear and even despair. Marital breakdown is a social reality and pretending it does not happen, or wishing it would not happen, will not make it go away. Despite the best efforts of mediators, conciliators and even the parties themselves there will always be a number of persons for whom an irretrievable breakdown is a sad reality.

For a long time we in Ireland chose to ignore or hide our social problems but they did not go away. They remained in the background like some dark family secret which we were too embarrassed to discuss or debate. We have been forced to confront many of those problems in an open and public manner in recent times. Marital breakdown and divorce are yet another social issue which we must face realistically and honestly. No one can seriously dispute that marital breakdown is part of our society. We, as a Legislature, have passed a number of significant measures to deal with the effects of such breakdown. The legislation governing judicial separation now deals comprehensively with the rights and duties of separated spouses, the division of assets, the maintenance and support of children and questions of custody and access.

In effect, we have already dealt as a Legislature with the after effects of broken marriages. The proposed amendment will not change the law dealing with income or property upon marital breakdown, nor will it change the law dealing with maintenance or support of children, access or custody. The net effect of the amendment will be to grant the right of remarriage to those whose marriages have irretrievably broken down. That, in essence, is what we are asking the people to vote for or against.

Take, for instance, the plight of a young woman, the victim of domestic violence and, ultimately, desertion by her husband. If, after some time, she meets someone else and enters into a rewarding, stable and loving relationship, are we to deny her the opportunity to remarry and the right to have her long term and loving relationship recognised and regulated by law as marriage?

Many people already find themselves in long term second relationships. Many children have already been born into these second relationships. This is the reality. Surely, the children of these long term relationships can expect the State to recognise the relationship between their parents and allow them to remarry so that the children of second relationships can be afforded the same social and legal recognition as others. Why should they carry a social or legal stigma when they are innocent?

In many if not most instances of marital breakdown and separation the parties have no desire to remarry and the proposed amendment will have little or no effect on such persons. However, in some instances there are those who wish to marry again. There are people who have entered into long term second relationships. There are children born of these second relationships and failure to recognise and give effect to such circumstances cannot be right.

Divorce is not a cure all. It is not a solution to marital breakdown; it is simply a recognition of reality. We must always bear in mind the consequences of marital breakdown on children. An unhappy and riven home life can scar children for life. Children are damaged by the breakdown in the relationship between husband and wife, the absence of love in marriage, the fighting, the tension and the unhappiness in the home. It is the breakdown of the relationship between husband and wife which damages children not the making of a judicial separation order or the granting of a divorce.

As Professor Anthony Clare pointed out, research suggests that the cleaner the separation or divorce, the better the outcome for the health and welfare of the children. The introduction of divorce will afford the parties to a broken marriage the opportunity to finalise their affairs, make a clean break and offer the possibility to both them and their children of a second, more stable and loving relationship.

We hear about damage to children as if it were inevitable that all children of separated parents are emotionally and socially scarred for life. This is a grave injustice to thousands of single and separated parents who, often in difficult circumstances, have successfully reared their children to become happy and well adjusted members of society. It is a grave injustice to thousands of children of separated parents who adapted, sometimes painfully, to the break-up of their families but who have grown up to become perfectly normal adults. Undoubtedly, the break-up of a family will have an effect on all members of that family and may present children with particular difficulties in adjusting to the absence of a parent, the lowering of living standards or to any new relationship their parents may form. As a society we need to support and assist children in this situation but we cannot do this by pretending that marriage breakdown does not happen in Ireland or that second relationships are not formed. We must acknowledge the realities of Irish life and of Irish families.

For many the issue of divorce is a question of religious principle. On grounds of personal conscience and religious conviction, they feel they cannot support or introduce a law which runs contrary to their religious beliefs. However, we now live in an Ireland which has changed dramatically since the adoption of the Constitution in 1937. Our society is now more diverse than ever and our State institutions and laws ought to respect and reflect that diversity.

We in this House have a duty to shape the law to meet the legitimate needs of all our people. This duty is not necessarily fulfilled by modelling the civil law on the teaching of one particular church, even if those are the beliefs shared by the majority of the population. The law must respect the rights of those of different faiths and of none who are equal citizens of this State.

I would describe myself as a republican and, as such, I believe in a democratic society, the separation of the powers of Church and State, the dignity and rights of each individual and the principles of tolerance and compassion. As a Catholic I am affected by questions of conscience but, as a republican and democrat, I know my own religious beliefs cannot and should not be used to justify laws which would force others of differing views into a legal and moral straitjacket, which neither respects nor recognises their separate beliefs or traditions.

As a State, we must try to cater for all our citizens and not just for those who share our own religious or moral ethics. We in the Fianna Fáil Party come from a great tradition of republicanism stretching back beyond this century which strove to ensure that Catholic, Protestant and dissenter could live together in freedom and harmony on this island. At a time when continuing peace in Northern Ireland is an increasing reality, we have never been so conscious of the need to understand and respect differences in belief, culture and lifestyle. The measure of our democracy is not only in how we give effect to the wishes of the majority but also in how we respond to the needs and rights of the minority. Now, perhaps more than ever, we need to show a degree of tolerance and diversity in our approach to social and moral issues.

We can recall the often quoted reference to Northern Ireland as a Protestant State for a Protestant people. The intolerance and narrowmindedness behind that concept has left a painful and lasting legacy upon a part of our island. As we now seek to build a new and better relationship between the people of this island and as we talk of peace and reconciliation, can we match our action to our words? Can we give practical effect to the concept of minority rights, tolerance and understanding or will we be regarded as merely a Catholic State for a Catholic people? How we tolerate and accommodate the views, beliefs and needs of those who differ from the majority illustrates whether, in fact, we are, as we proclaim, a caring and compassionate society.

I firmly believe in the family as the fundamental unit of society and that it is the duty of this State to encourage and support married and family life. I also believe it is the right of persons in any civilised society to be allowed to put unhappy and broken marriages behind them and be given the chance to start again where due provision has been made for the health and welfare of affected parties. For this reason I believe we should have divorce but we should channel more energy and resources into supporting and maintaining family life. We should have sufficient confidence in ourselves and in our maturity as a nation to trust that the right to remarry provided by this amendment will be exercised responsibly by those of our fellow citizens who are now locked into the legal limbo of permanent separation, and will not bring about the end of society as we know it.

Since the last divorce referendum in 1986 we are an older, wiser and possibly sadder community. We have had to face up to many unpleasant social issues. We have had to look at victims where previously we saw no crime. We have had to question many values which we used to take as read. Despite the many difficulties I believe that this last decade has been a period of growth and understanding. When we go to the polls on 24 November it will be an acknowledgement of the complexities of marriage breakdown and compassion for those caught in the present legal vacuum.

The Minister rightly acknowledged in this speech the many years of work done by previous Governments and Ministers in addressing the problems surrounding marital breakdown.

He also referred to the significance of the White Paper on marriage breakdown published by the then Fianna Fáil Minister for Justice, Mr. Pádraig Flynn, in September 1992, which laid the groundwork for this debate. As legislators we must deal as best we can with the problems affecting the tens of thousands of people whose marriages have broken down. This Bill has been preceded by ten years of legislation on the family and marriage breakdown. It is accompanied by a draft Bill which clarifies the position if divorce is introduced.

There has been some criticism in the media about my party's response. It needs to be understood that Fianna Fáil, the largest political party, will naturally represent within its ranks a diversity of opinion. What goes on in Fianna Fáil is public knowledge and the parliamentary party meeting is no longer a private event. At meetings on social issues the diversity of opinion has been very evident and reported on. I respect that diversity and the conviction of people who hold different views. It needs to be appreciated that what happens in Fianna Fáil reflects in many ways what is happening in the wider society.

Fianna Fáil has dealt with the issue of divorce and made clear its position on the Bill. I ask the Government parties to put some enthusiasm and conviction into their campaign on this important referendum. A heads down approach will not work and will be seen for what it is by the electorate. I hope such an approach will not be pursued as it may lead to a disastrous outcome in so far as those of us who support a "yes" vote are concerned. The Fianna Fáil Party will support the passage of the Bill through the Oireachtas and our party spokesman, Deputy Woods, has put forward a five year action plan of back-up support for cases of marriage breakdown. Will the Government give serious consideration to these proposals?

Deputy Woods referred to the status of marriage. Setting up the Oireachtas Committee on the Family was a recognition of the economic and social pressures on marriages and families in a modern society and the changes in the workplace where in many cases both parents work full-time or part-time.

Child care was also referred to. When I became a Member of the House in 1987 child care was a live issue at the Committee on Women's Rights. What concrete measures have been taken in this area? There has been reference to crèche facilities and many excellent proposals on paternal leave have been put forward at EU level. However, as a nation we lag far behind many of our EU colleagues on these matters. It is necessary to put measures in this area on a statutory basis.

Deputy Woods referred to the counselling service. In this respect there should be an obligation on the spouses in separation or divorce cases to participate in the counselling process. At present this service is provided by voluntary organisations. They must be properly funded. We have also emphasised the need to focus on providing help for families in need. Many families, particularly less well off ones, have financial and housing problems. These need to be addressed as they contribute to marriage difficulties. The role of education was also referred to. An educational programme on marriage and what it entails must form part of the school curriculum. Other proposals relate to time-out for parents and the appointment of a commissioner for children attached to the courts who would be responsible for and represent the needs of children in cases of marriage breakdown. We also propose a fundamental upgrading of the family courts.

We have heard much from the anti-divorce lobby about the need to protect the family, even in cases where one parent is absent and the step-parent loves, supports and nurtures the children. In their rush to be seen to protect the family these lobbyists have failed to realise that the individuals most committed to the institution of the family are those who have endured the trauma of marriage breakdown and who still wish to confer the legal status of marriage on their second relationship and the constitutional status of a family on the children of that relationship.

Those who oppose the right to remarry will no doubt use scare tactics and try to concentrate the minds of voters on the issues of property and land. They will try to deflect the arguments from the fundamental and central questions of civil and human rights to more self-centred and emotional questions which will no doubt create fear and worry in the minds of the public. The truth is that women are the main victims of marriage breakdown and in many instances they suffer domestic violence and abuse in silence. It takes considerable courage and strength to end such a relationship. This referendum campaign does not need a scaremongering witch-hunt against people who are vulnerable because of an absence of appropriate legislation. Rather we need a caring and supportive legal structure which will allow for remarriage in specific circumstances. I am confident this House and the electorate have the capacity, will and compassion to get it right on this occasion.

Minister of State at the Department of Social Welfare (Mr. Durkan)

I compliment Deputy Kitt on his constructive, supportive and unemotional contribution to this debate. I also compliment the Minister for Equality and Law Reform, Deputy Taylor, for bringing this Bill before the House and putting in place adequate back-up legislation to ensure a proper debate and the enactment of this Bill. I hope the debate inside and outside the House will be objective and unemotional with no personal animosity and that no one will seek for reasons of political expediency to exploit the tragic situation in which many people find themselves. I also hope that anything I say will not undermine their position.

It is important to ponder on the concept of divorce for a moment. People will not pursue divorce as a social option available to them. Marriage breakdown is a fact of life and there has been a huge increase in the number of cases of marriage breakdown in recent years. There are those who will say we should not encourage marriage breakdown. We are not encouraging marriage breakdown. Rather society is evolving that way and public representatives cannot change what is happening. Are we fit to judge people whose marriages have broken down? Why should we think we have the right to say to people whose marriages have broken down, perhaps through no fault of their own, we cannot help you and we do not propose to help you? That is an uncaring attitude and is certainly not in keeping with that of a caring society which we claim to be.

Let us look at some of the other issues. The main churches have already indicated their opposition to divorce, as is their right. They are entitled to speak to their respective flocks and inform them of their views on the issue, and have no difficulty with that. The churches have had to adapt to changes in society and have, in their respective ways, made provision in a humane way for marriage breakdown. Are we then to suggest that the State should not fall into line? Is the State to ignore what is happening and do nothing? What the Government is doing is correct and I hope all parties within this House — I know there is consensus already — will do likewise.

It has been suggested that the politicians in this House have a cosy arrangement and that they do not represent the people. However, they are elected by the people who have the right to re-elect them or otherwise at the next election. The people have elected the Members of this House to speak for them, and that is what we propose to do.

Let us look at some of the arguments for and against divorce. I abhor the scaremongering emanating from some quarters by way of misinformation. It has been suggested that divorce will put an end to many existing marriages. Marriages where couples have separated by agreement or otherwise will come to the fore in the early stages in the event of the passing of this legislation. However, there is nothing we can do about that. If a couple have agreed to separate, that cannot be reversed by legislation. We cannot force people to live together if they have agreed to separate.

On the question of the welfare of wives and children, I compliment the Government on the preparatory legislation it has put in place in the last few years. When a referendum of this nature was last put to the people, sufficient time was not given to put such legislation in place. This has now been done and there is no reason for any scare about succession rights or the welfare of children.

It has been suggested that this legislation, if passed, will encourage separation and create a further threat to children and wives. It has also been suggested that a woman could be divorced against her will. Does that mean that legislation could change irretrievable breakdown of a marriage and the separation of a couple? On what basis could somebody be divorced against their will? I am not an expert in this area but I have dealt with the situation on behalf of my constituents for many years. Of what benefit will it be in regard to maintaining the children and keeping up the family home if the State refuses the right of a separated spouse to remarry? There is no benefit. Does a woman who is deserted and left to look after a family have a choice? Although the legislation will not solve her problem, it will not make it worse. It will improve it considerably by virtue of the provisions for her and her children.

There has been criticism that the grounds on which a divorce may be granted are not liberal enough. This is an old question. Some will say we have gone too far, others that we have not gone far enough. We cannot win. The legislation as proposed, including the constitutional provision, is the best that could be arrived at in any circumstances and makes the necessary provisions prior to the introduction of divorce legislation. This has been dealt with in great detail and in such a way as to take into account the anxiety of the people to retain certain provisions in the Constitution and retain for themselves certain powers relative to legislation. That is not possible in all situations but it is desirable in some, and this is one such situation.

It has also been suggested that divorce will encourage the break-up of marriages, but this trend has been increasing in the last ten years, and not because divorce was in existence. It is happening because of changes in society. It may not be a good thing and I am sure everybody will do their utmost to ensure that it does not continue. Some people say divorce legislation will make it easy for that to continue. I do not think it will. It is not easy at present, but still marriages are breaking down. It is most important to emphasise that divorce will not be mandatory. It will not be enforceable by law that everybody who gets married will have to get divorced. We are merely lifting the constitutional ban on remarriage. If this ban was not in the Constitution, would we introduce one? I do not think we would. On what grounds could such a ban be introduced? Could it be introduced on the grounds that it would slow down the break-up of marriages? It would not do that. Changes are taking place in society whether we like it or not.

Another piece of misinformation also being bandied about is that there will be an extra cost to the Exchequer and that the State will not be able to meet the costs of divorce. That has already been debated in the context of the Social Welfare Bills and of the Finance Bill. My colleague, the Minister for Social Welfare, Proinsias De Rossa, has repeatedly dealt with that issue. The best estimate is that the introduction of divorce will cost about £1 million in the first five years and £2 million in the next five year period. To those who scoff at that idea I say that at present, given the trends in the past ten years, we are already making provision for marriage breakdown. We had to make provision by way of allowances for deserted wives, lone parents and so on. Present trends are likely to continue in the foreseeable future and it is on that basis the Department has arrived at its projection which is a reasonably accurate one. I do not accept there will be a huge increase in the cost to the Exchequer and that as a result of this legislation the taxpayer will have to pay extraordinarily excessive taxes. The taxpayer is already carrying the cost of marriage breakdown and will have to continue to do so. In case it might be suggested that should not be the case, what is a woman to do who may be left with large debts, a family and no income unless she can rely on the State to provide for her in a reasonable way? That is what is happening at present. I expect that provision to continue and that society would expect us, as legislators, to continue to provide for people in such cases.

There is now greater emphasis on mediation services and marriage counselling. Those services were not given the same attention ten years ago as they are given today. It is generally recognised that greater time and effort must be put into mediation and counselling and that is being undertaken by the Government on a phased basis and must continue to be done. The question of funding agencies providing such services is ongoing. Available figures attest to the success or otherwise of counselling and mediation services. The figures are reasonably good. It is an indication of the Government's intention that we should proceed along that road to prevent marriage breakdown in so far as it is possible. This legislation is necessary to deal with cases where it was not possible to prevent marital breakdown.

I wish to refer to the issue of whether couples who disagree or do not wish to live together should be forced to remain together. From my experience of the majority of such cases with which I have dealt in my constituency, and I do not know whether I speak for everybody in the House, the woman has been the victim in the household. Surely in such cases we must expect that the tab should be taken up by the State, and that is already happening. There seems to be a lack of recognition in some quarters of the plight of such women. I am sure all Members have met women in their clinics on a Friday evening or Saturday morning who have told them that their husbands for one reason or another have disappeared and left them with a spate of bills, huge responsibilities and no means. It would be a very callous society which could provide these women with the necessary subsistence payments by one means or another in the interim, but not allow them to enter into a subsequent relationship. We do not have the right to be judgmental to that extent. There was a time when people said that such things only happened to others, but among our friends and our community we know of countless people who have separated, in some cases tragically and in others by agreement. That is how society is evolving. Society may change again, but we must make provision for changes that are happening now. The proposed legislation is a humane way of dealing with a difficult situation.

I hope the legislation will be supported by everybody in the House. It is generally recognised that it is needed to address the problems we have talked about. I hope the legislation will be supported outside the House and will not become a divisive issue. I do not believe that any of us have a monopoly on wisdom in this or any other area. All we can do is rely on our experiences, relate those to the general issue and consider the extent to which we can accommodate those who are affected by changes that have taken place in society and how best we can address their problems.

I compliment the Minister for Equality and Law Reform for introducing the legislation and the Opposition for supporting it. The fact that politicians consider it within their remit to support such legislation is a recognition by all parties of the need to address this problem. If we did not do that, we would not be as representative of the people's views as we should be. I support the legislation and I hope when the referendum takes place on 24 November that the people will support the views Members of the House will have expressed.

Mr. Noonan

(Limerick West): Having listened to the misinformation delivered by the Minister of State, Deputy Durkan, and noting that he has sought to avoid scare tactics, I hope to put right the misunderstanding and misinformation he has promoted.

I am totally opposed to the removal of the ban from the Constitution to allow divorce be introduced. I will not be supporting the referendum. I will vote "no" and give guidance and leadership to my friends and constituents by encouraging them to do likewise. The people will make the decision and it is their right to do so under our Constitution. I am opposing the legislation and while that may seem a contradiction, my opposition is based on the fact that details of the required period of separation before a divorce can be granted should not be written into the Constitution. That is more proper to legislation. Do we not have confidence in ourselves as legislators to legislate on these issues? Writing such a provision into the Constitution is another means by which the Government, and I am saddened it is supported by my party, intend to hoodwink the Irish people into thinking that it will not be possible to get an easy divorce. Irish people are not fools and will realise that this effort by the Government is one by which it proposes to introduce divorce by stealth or by the back door, but it will not succeed.

While the opinion polls indicate that the majority of people favour the introduction of divorce, those opinion polls are only valid on the day they are taken. On the day of the referendum when the real decision will be made the people will vote "no" and reject these proposals as they did so decidedly in 1986. There is no widespread demand to remove the ban on divorce in the Constitution and this will be proven on the day of the referendum.

Divorce is basically wrong and will destroy the fabric of family life and values. The wording should be simple. The people should be asked to vote "yes" or "no" as to whether they wish to remove the ban on divorce from the Constitution. As I have already stated, this Government, supported by other parties, will go to any lengths to lead this country down the road of the liberal agenda which will be rejected by the vast majority of people.

Since I made public my opposition to divorce I have received many letters and telephone calls not only from people living in rural areas but, more particularly, from people living in Dublin city and county. Their message to me was that they agreed with me in my opposition to divorce and that they would have their say on the day of the referendum.

On this occasion, unlike 1986, Fianna Fáil is also seeking a "yes" vote in this referendum. I wish to state here, lest the impression be given otherwise, that this is not the unanimous decision of Fianna Fáil; it is far from that. Many of my colleagues in the parliamentary party are against the introduction of divorce and the vast majority of our supporters throughout the country are opposed to the stance Fianna Fáil has taken. This will be proved, beyond any doubt, by their widespread rejection of these proposals on the day of the referendum. The message coming to me loudly and clearly from Fianna Fáil members is that on this occasion we have once again got it wrong. They are asking the question: must we slavishly follow the Government line in this legislation?

Divorce should not be introduced in this country. Contrary to what the Minister of State, Deputy Durkan, said, many more marriages will break up when divorce is introduced because more people will avail of it. My opposition to divorce falls under three headings, the first of those being the question of property which is one of the major issues in this referendum. Notwithstanding the legislation in place, people are concerned about the division of farms, house property and business premises. In a divorce, who will get the house, the farm or the family business? Under this legislation, that will be decided by a judge. Therefore, having spent years building up one's farm or business which may have been in the family for generations, a judge will have absolute authority to dispose of it as he or she wishes. I am not in favour of that.

It will be argued by the Government and the Opposition that we already have provision for judicial separation. In cases of judicial separation, however, the parties involved decide on the division of property. In cases of divorce, they will not have any say in this matter under this legislation. Will it be the case that the side which can afford the better lawyer will end up with the assets while the poorer one will be left dependent on social welfare? Under this legislation, a farm, business premises or homestead will most likely have to be sold in the event of divorce. That raises the question of the enormous financial and emotional cost to the already over burdened taxpayer, to society, to women and to children. Divorce is, therefore, a social evil that we can well do without.

My second point concerns the psychological effects of divorce on children. Must the children of existing unions grow up with psychological scars? Are these children to be a further burden on the already overtaxed taxpayers? I will develop this point by referring to claims made by speakers on the opposite side of the House and by the pro-divorce lobby which suggest that the non-availability of divorce is in some way part and parcel of the denial of a civil right. Since its foundation my party, Fianna Fáil, has laid claim to securing the widest range of civil and political rights. The Constitution, which was framed by Fianna Fáil, guarantees to Irish people everywhere the means to secure their individual rights as human beings and as citizens of Ireland.

Fianna Fáil should not consider supporting measures which would deny people fundamental and implicit human rights. The principle of common good is firmly enshrined in our Constitution and wherever the common good is cited, the enjoyment of right must always take precedence over the right of enjoyment. The natural rights to security, enshrined in our Constitution in favour of the children of this nation, are superior to that of the fulfilment of an individual's right to remarry.

The notion has been put forward by the Government and by the pro-divorce lobby in this debate that freedom and liberty is a simple entitlement to do what one likes. Every constitutional provision, statute and law is drafted to protect real liberty. The protection of liberty requires its boundaries to be defined and once we begin to transgress those boundaries, we trade liberty for the path to lawlessness.

I challenge my opponents and all those who favour the introduction of divorce to say publicly that the right to remarry is a superior right to the right of security enjoyed by children. I challenge the Government to tell the people in this referendum how it came to hold the view that a child's right to security is inferior to the right not only of its parents but of one parent to permanently threaten that security.

My third point concerns the question of cost and I am basing my figures on the cost to taxpayers in the United Kingdom. The experience in the UK has been that the cost of divorce to taxpayers is in the region of £2.6 billion. The cost to this country on a pro rata basis will be in the region of £500 million per year. Can the Irish taxpayer afford this expenditure? It cannot. How many people can afford to support two or three families? The majority of people own a house and have a large mortgage and when that house is sold there is little to divide. In the case of divorce, a judge cannot divide what is not there. We all know, therefore, that poverty will result, particularly for women and children.

With regard to pension rights, a separated woman is currently entitled to 50 per cent of her husband's pension. If divorce is introduced, she will have to share her half with wife No. 2, 3 or even 4. That represents a considerable reduction in her pension entitlements. Once again the taxpayer will be called on to contribute.

Those in favour of divorce will say I am alarmist, but the fundamental facts cannot be denied. The reality is clear that the poor will get poorer because of cutbacks in health, social welfare etc. which must come of necessity if divorce is introduced. Is this the society we want in Ireland? Even the US and the UK are going in the opposite direction from where we are going. Can we not learn from their experience?

Will divorce be voluntary? It will not, contrary to what the Minister of State, Deputy Durkan, has said. If one partner decides to apply for divorce, under this legislation the other party will have no say. Therefore, the family will be left in poverty. Is this justice? One partner could be an innocent party and still could end up on the streets with her children. The "no fault" divorce proposals mean the judge will not take into account that, perhaps, one spouse is an alcoholic, a gambler, etc. The innocent and the guilty will be treated equally before the law.

The Government and certain sections of the media will produce people who will say with conviction on the airwaves that they are part of a second stable relationship and the absence of divorce will be cited by them as the only factor diminishing the stability of that relationship. Neither the Government nor the media will tell the full story. The full story will be told at the ballot box when the other partners in these relationships, who suffer needlessly, will voice their view and vote "no".

An environment has been created in Ireland recently where it has become unpopular to say no. There is a very substantial silent majority saying no and that same substantial majority will stand at the ballot box on referendum day and will determine, by their vote, the kind of society they wish for Ireland by saying no. I believe they will look at England and America and will decide that when people say they prefer to rear their children in Ireland they will want to keep it that way.

I condemn strongly the campaign of secrecy engaged in by the Government relating to the issues in this referendum. The people object to being treated as fools and reject totally the concept of propaganda, particularly when disguised as information. It is wrong of the Government to suggest that there is a balanced information campaign. The people will reject very strongly the concept of being told they may vote any way, so long as they vote "yes". In what document did the Government tell the people who will pay for divorce? I have already outlined the details on this — the people will have to pay for divorce, if introduced. This country cannot afford to have divorce and cannot afford to contribute additionally and permanently to support a new dependency culture.

From the standpoint of the Constitution, the proposed amendment is a disaster. It is drafted in such a way that its effects are contrary to what the Minister claims. The Minister for Equality and Law Reform, Deputy Taylor, has presented the amendment as being based on a long period of separation. This is simply not true. A man who has been living with his wife for the past year can walk out and claim a divorce forthwith. He is permitted to invoke an earlier period when they were apart but, more fundamentally, there is no requirement of physical separation. It is possible for a court to hold that a husband has been living apart from his wife if he has mentally withdrawn from the relationship, even though he has not expressly announced to his wife that he has repudiated her. We are not talking here simply about cases where spouses physically live apart under the same roof. Under the Minister's proposal, a mental withdrawal will be sufficient. A man who comes into court and says he has had a poor relationship with his wife to such an extent that there was an emotional distance between them, at least in his eyes, will be granted a decree of divorce against his wife.

I wish to return to the so-called protection of spouses in the area of property. If you look closely at the wording of the amendment you discover that the court is not required to be satisfied that the spouse seeking a divorce has to give adequate financial support or property to the spouse who is being divorced against her will. What the amendment actually says is that the court must be satisfied that what is termed "proper provision" will be made for both spouses. Therefore, the court is required to ensure that the spouse who is rejecting his wife must receive proper provision. If he is to get proper provision, often there will not be much left to the wife whom he is divorcing. Neither will it be necessary that the husband give his wife any financial provision in a case where his entitlement to proper provision leaves nothing for her. In such a case the divorced wife will go on social welfare.

The Minister knows perfectly well that divorce of the kind he is proposing will drive divorced wives in their thousands on to social welfare, requiring the court to take into account a husband's entitlement to remarry and take on new financial responsibilities to a new wife. The only way this can be done is by reducing the husband's responsibility to support his wife.

If we change the Constitution to allow divorce we will then have the contradiction we now have with regard to the right to life of the unborn. If we say that the family is the basic unit of society, divorce will surely destroy the very fabric of our family. Our Constitution upholds the importance of the family in society. Can we not learn from other countries? As surely as night follows day this referendum will be defeated, notwithstanding the efforts of the parties in Government and — I am sad to say — the goings on of my own party. The impression abroad is that Fianna Fáil is in favour of the introduction of divorce. I repeat, nothing could be further from the truth.

Minister of State at the Department of the Environment (Ms McManus)

I respect the differing views that clearly exist in relation to divorce and accept that there are some people who have moral objections to the whole question of divorce. Every Deputy in the House has a responsibility to be accurate and clear when making statements in relation to this issue. That responsibility includes the previous speaker who, I believe, has misled, has been inaccurate and in certain instances has been wrong in what he has stated in regard to what the divorce legislation is all about.

Nobody doubts that the reality of marital breakdown is painful. Nobody should be under the illusion that it is a reality a Government or a constitutional provision can actually prevent. No government in the world can ensure that couples stay together no matter what. We have the evidence here. Despite the fact that we have no divorce we have seen an increase in marital breakdown. That is a fact and one we must live with and face up to.

We certainly have a serious obligation to support families. We have to ensure there are social and economic foundations for stable long-lasting relationships. Poverty, unemployment, bad housing and indeed lack of housing are factors that militate against families and are issues that this Government is determined to address not only in the interests of families but of society as a whole. In educating our young people we have to ensure they are taught about responsibility in relationships and in particular about responsible parenthood.

I am very glad my colleague the Minister for Social Welfare, Deputy Proinsias De Rossa, is about to establish a commission on the family. That is an important step. We have to look at ways and means of ensuring that families can be supported in a world that is changing rapidly. Even allowing for supports and ways of encouraging families to stay together, people make their own decisions at the end of the day and some people will decide to separate. We cannot determine that decision, whether it be to separate or to reconcile but we can help to alleviate some of the practical difficulties which accompany marriage breakdown. We can ensure that individual financial entitlements are protected as we have in the Social Welfare (No. 2) Bill; we can ensure to the best of our ability that vulnerable families are protected, as we have in the Family Law Bill. We can ensure that people are not forced to suffer for the rest of their lives the consequences of a single mistake.

Today we are paving the way for people to have their say on the right to remarry. Essentially this is what the referendum is all about. On 24 November 1995 we will seek to complete a journey which started when the Oireachtas passed the Status of Children Act, 1987, the Judicial Separation and Family Law Reform Act, 1989, and other legislation. Legislation which recognises the reality of marriage breakdown has been introduced. The introduction of the right to remarry will not encourage marriage breakdown but provides a second chance and will introduce an element of stability for the children of second unions who currently are in a legal and social limbo. Our society is built on the family and this Government is determined that family structures will be protected, maintained and strengthened.

Due to the absence of divorce in this jurisdiction, we have recently witnessed an increase in the number of family units that are not recognised in the tax and social welfare codes and are simply outside the system. We have an expanding tier of second-class families. It could be argued that the constitutional ban on divorce militates against another constitutional provision, the injunction on the State to protect the family. The most vulnerable members of any family are the children and marriage breakdown can harm children. We all know the effects of parental strife and insecurity. This has been used — I think wrongly — as an argument against divorce. The absence of divorce has not had an effect on the rate of marriage breakdown. By the same token there is no evidence that the introduction of divorce will increase the rate of marriage breakdown. The marriage breakdown rate in the Republic and in Northern Ireland — probably the most comparable jurisdiction — is similar in spite of the fact that divorce has been available in Northern Ireland for some time. In that context it is worth noting that there is an onus on us to ensure that our Constitution is not divisive and is inclusive rather than exclusive.

When framing the amendment the Government was conscious of the need to avoid the pitfalls into which other jurisdictions had fallen when legislating for divorce, while providing an effective and accessible remedy for those whose marriages had broken down. We have had the advantage of being able to learn from other people's experiences and we have used it to good effect. The provision that divorce may be granted to individuals who have been living apart for four out of the previous five years is a sensitive one which recognises the reality. It will enable people who have tried a short period of reconciliation during the past five years to obtain a divorce. It also caters for those who for financial and other reasons have been forced to share the same accommodation while living apart in all other respects. The previous Deputy painted a false picture of what that aspect of the amendment entails. We are well aware that there are many couples whose marriages have broken down who simply cannot afford to separate. It does not mean their marriages are still alive but simply means they are occupying separate space under the same roof and have as much right to access to the courts and to divorce if this amendment is passed as those who are more fortunate and have more money with which to make arrangements for an independent life.

The amendment drafted by the Government represents a compromise, not only between the partners in Government but also between the various strands of society. In an ideal world Democratic Left would have favoured a simple deletion but we do not live in an ideal world and the amendment before the House is the best possible option. The terms of the amendment will reassure those who are concerned that we could open the door to the regime adopted in other jurisdictions where so called "quickie" divorces are the norm rather than the exception. This is the best proposition that we can put and is in tune with the concerns of Irish people. It reaffirms values and it can only be altered by the people.

One may ban divorce but one cannot ban marriage breakdown. It is estimated that up to 75,000 people are living apart from their spouses, many of them having lived apart for a considerable period. The unpalatable reality is that the number of marriages breaking down is increasing at an unprecedented rate yet, as in so many other areas constitutional reform has lagged behind social change. In 1993 there were 15,000 marriages but in the same year there were 3,000 applications for barring orders and 1,000 separation applications. That means that a minimum of 4,000 marriages had broken down in that year, many of them irrevocably. Of course, the official figures do not include all those people who make their own arrangements privately without recourse to the courts.

I listened with interest to Deputy Michael Noonan and I can understand what he and other anti-divorce people are saying but I cannot accept it because I believe they are hankering after a past that will not return. It is understandable to be nostalgic but it ignores modern reality. While I accept the sincerity of those arguing against divorce I find it hard to accept their lack of faith in marriages when we see all around us evidence of solid happy marriages. This fearfulness is based on mistrust and a belief that people have to be protected from themselves. I have more faith in the people, in their maturity, in their good sense and in their regard for the family and their children. Irish people cannot be equated to Pavlov's dogs who will somehow automatically react to this new right. The mere presence of divorce legislation will not prompt couples automatically to rush to seek a dissolution any more than the mere presence of abortion information legislation will prompt women to seek a termination of pregnancy without having serious good cause and giving it serious reflection.

Those harbingers of doom who prophesied Armageddon following the passage of the abortion information Bill and who are engaging in a campaign of misinformation in the run up to the divorce referendum are unable to accept that we can exist in the modern world without losing our values and our common decency. They appear to view the modern world as a bacillus to which Ireland is peculiarly susceptible. As an Irishwoman living in that world, I find that notion deeply offensive. We live in a society that is based on the family; that will be the case in future as well as at present. However, we also live in a society where most families have some experience of marital breakdown whether it is in their own family or in that of a relative, friend or neighbour. It has touched most families. It exists and people know it. It is a painful issue but the breakdown of a marriage should not mean that the partners must always and forever be denied a second chance.

The amendment before the House balances the rights of those in failed relationships and those who have entered second unions against the concerns of those who fear the introduction of the lax divorce regime present in some other jurisdictions. If passed, the amendment will facilitate the introduction of sensitive and compassionate legislation which will recognise modern realities while at the same time protecting families and the rights of family members.

All parties in this House are on record as favouring the right to remarry. Some parties, however, have displayed more courage than others. While recognising and respecting the reservations of individual Fianna Fáil Deputies, I welcome Fianna Fáil's commitment to supporting the Government referendum. It is not easy for an Opposition party to support the Government but, in this case, it is logical and in line with its viewpoint. It is good for Irish society that we have such consensus.

All parties in this House favour the right to remarry, and few have been more vociferous in their advocacy of that right than the Progressive Democrats. Only four months ago, Deputy Keogh, when debating the Social Welfare (No. 2) Bill, stated that the Bill was one of the building blocks in an edifice designed to ensure a successful divorce referendum. She went on to say that she was reluctant to stand in the way of anything that was helpful in that regard. I regret that she, together with her colleagues, has apparently overcome her reluctance to stand in the way of a successful divorce referendum for the sake of scoring a few political points. The Progressive Democrats have undoubtedly garnered a few column inches. However, they have also done a disservice to people who are trapped in failed marriages and to those in second unions who wish to regularise their position and that of their families.

Marital breakdown is not a new phenomenon in Ireland; it goes back over a long time. Divorce is not a new phenomenon being introduced for the first time. We are not introducing divorce but reintroducing it. Under Brehon law marriage and divorce were simple, easy and equally available to both parties. However, there is a difference in today's debate. We are more aware of the effects of marital breakdown and more conscious of human relationships, their frailties as well as their strengths.

There has been a great deal of debate about marital breakdown and the impression is given that somehow it has emerged in the last 20 years. There have always been unhappy marriages. Certainly, there are more now and people are separating to a greater extent than they did in the past. However, that is not to say that at some point in the past there was a period when marriages were all happy, when all children were cared for and when women were never abused or battered. It is part of human nature. We must ensure that the constitutional amendment is a way of resolving the difficulties that people must endure when they move into a new relationship and are unable to have it legally underpinned in the same way as the rest of us who are fortunate enough to be happily married.

I hope this referendum will be passed. There is a general willingness among the public to view it in a good light and not to see it constantly in terms of darkness, distrust and despair. Irish people do not feel that way about themselves any longer. We are beginning to trust ourselves and to trust our own judgment when it comes to confronting difficult problems wherever they arise. The abortion information debate and the legislation on homosexuality showed that people could accept change. Many of the people who argue against divorce do not trust the people as they should. They are constantly fearful that somehow the foundations of the State will disappear. The evidence for that does not exist. They are misleading, obfuscating and confusing people on the basis of a misconception.

The referendum will be passed because the Irish electorate is mature enough to see through the scare-mongering of the anti-divorce lobby and the protestations of those who face both ways on the issue. The Irish people know good sense when they see it. This amendment is about good sense. People know that marriage breakdown is a reality in Irish society. They also know that there is life after marriage breakdown. As legislators we have a duty to legislate for the world as we find it — not as we might wish it to be. That is what we are doing today.

Mr. O'Dea

The 1986 referendum campaign left a bad taste. It left in its wake an all-pervasive sense that justice had not been done. It certainly was not seen to be done by a great many people and I am not simply referring to the people who were advocating divorce. This arose from an impression that the issues had not been properly addressed or, at least, that the proper issues had not been addressed. There was an impression that there had been an undue emphasis on side issues that did not go to the root of the case for or against divorce.

There was more than a little justification for that impression. The Government campaign in 1986 was — to put it charitably — incoherent. There was no preparatory work carried out. The absence of the necessary preparatory legislation and the anaemic campaign that resulted gave people the opportunity to divert the debate into side shows and concentrate on issues which were marginal to the question of whether divorce should be introduced. That led to a real sense of injustice and to a situation where many people — I am not just referring to people in the pro divorce lobby — simply did not accept the outcome of the campaign.

Much has happened since 1986. We are older and, hopefully, wiser. A mosaic of legislation has been put in place to meet many of the concerns that were raised in the 1986 campaign. I do not doubt that the then Government would have put these measures in place subsequently if the divorce referendum had been passed. Obviously it was not going to let the problems which were going to arise continue. Nevertheless, the preparatory work should have been done in advance of the issue being put to the people. The fact that it had not been done allowed the campaign to be sidetracked to a great extent.

There should, at least in theory, be no confusion on this occasion. However, amazingly and unfortunately, the Government campaign to date has again raised the spectre of a rerun of the acrimony, divisiveness and confusion which blighted the 1986 debate and caused a large number of people to refuse to accept its outcome.

I listened carefully to Government spokespersons and to the Minister for State, Deputy McManus. The more I listen to Government spokespersons the more I cannot believe what I am hearing.

All I am hearing is a mantra-like repetition of the phrase "remarriage is the only issue". They have said it so often at this stage that they cannot say it in a way that shows they actually believe it. It is being repeated with all the spontaneity and enthusiasm of a "speak your weight" machine. Of course, that proposition is demonstrably false.

If we are to get this campaign off the ground properly, the Government will have to concede that the anti-divorce lobby has a strong and cogent case. Failure by the Government to even acknowledge, let alone address the strength of the case against divorce will undoubtedly, and unfortunately, encourage some people to vote "no". It cannot be gainsaid that marital breakdown brings misery and hardship in its train. It almost invariably, and certainly usually, has a deleterious effect on children. It causes loss of social cohesion. It has adverse financial consequences both for the families involved and for the taxpayer.

Divorce changes attitudes to marriage. It changes the perception of marriage as a lifelong contract. Because of this, it will probably lead to an increase in the incidence of marital breakdown and, consequently, to an increase in all the attendant misery, hardship and suffering which that entails. At present marriage, in law, is a lifelong contract from which there is no escape. The introduction of an escape clause will inevitably weaken that contract. It is true to say, as the Minister of State has said, that marriage breakdown is a reality already and, unfortunately, it is growing. It is going to continue to grow because of change in social attitudes. The issue which the Government must confront is whether the introduction of divorce will substantially increase the incidence of marital breakdown. My view is that it will not but there are those who honestly disagree and they are entitled to their viewpoint. It is quite impossible, even though I have a view on the matter, to predict the extent to which divorce will increase the incidence of marital breakdown with any degree of certainty or anything approaching certainty. The Government will have to confront the reality that these reservations and the arguments that underpin them have real force.

However, honesty is not a one way street. The anti-divorce campaign, for its part, will have to accept that the problems arising from marital breakdown have nothing whatever to do with divorce. They arise, as is quite evident, from the fact of marital breakdown. If these problems could be avoided by the absence of divorce, we would not have them. To date we have no divorce here, yet marital breakdown, and all its attendant consequences, have long been a reality of Irish life and the problem is growing, even in the absence of divorce.

Within five years of the introduction of the Judicial Separation and Family Law Reform Act, 1989, annual applications for judicial separation have doubled. In the 1992 census, 55,143 people described themselves as separated — an increase of almost 50 per cent on the 1986 figure. Between 1981 and 1991, the number of births outside marriage more than doubled and now account for more than one sixth of all births here. The estimate by the Combat Poverty Agency that 10 per cent of all families in Ireland are headed by a lone parent places us just below the average in the European Union, where the corresponding figure is 11 per cent. There is also the fact that the incidence of marriage is in decline. That demonstrates, if further proof were needed, that people are less ready now than heretofore to commit themselves to a lifelong union from which there is no legal escape clause. All this has happened in the absence of divorce.

The anti-divorce lobby will also have to accept that there are tens of thousands of previously married people in second relationships who demand — indeed crave — a legitimisation of their new union. Those people genuinely feel that they have a civil right to have their second union legitimised. There are also people whose marriages have failed and who have no intention of getting remarried but who want to be in a position to sever any legal relationship with the previous partner. Not only do they not want to have any social or physical contact with the previous partner, but they do not want to have any legal contact either. They feel that is their civil right and who can deny that? The anti-divorce lobby will also have to admit that to concede to the demands of these people represents the sympathetic approach.

Marital breakdown, as anybody like myself who regularly encounters its victims will know, is generally an unpleasant affair. I have encountered victims of marital breakdown who feel they are in a long dark corridor from which there is no escape — there is no light at the end of the tunnel. If those people are lucky enough to meet somebody else and find love, trust and happiness in a second relationship, why should they be forced to pay a price for this? Why should they be forced to pay the price for finding happiness by being forced to effectively live outside the law? The anti-divorce lobby will have to deal with that in their campaign if they are to engage in honest debate on the real issues before the people in this referendum.

The anti-divorce lobby will also have to accept that they are making impossible demands on the civil law in a modern democracy. In a dictatorship, the civil law can, though to a decreasing extent, dictate reality. In a democracy, the most civil law can do is reflect reality, but governments in a democracy have an obligation to ensure that the civil law does reflect reality. Anybody who looks at the procedure in this House will find that on the Order of Business we are engaged in asking the Government when particular legislation will appear. The main Government activity in the House consists of putting legislation through the House. The reason is that we have to constantly change and update the civil law to reflect social change and reality. That is what we are generally about.

The law must keep abreast of reality and changes in society. The more the law fails to do this, the more injustice that will result and the more respect for and compliance with the law diminish. It is a fundamental principle of good civil law that it reflect reality in so far as possible. How close it is to reality on the ground is regarded by all commentators as the badge of good law and, of a good legal system, how quick it changes to keep pace with social change and reality.

The function of civil law is to reflect reality and to keep abreast of social change. It is not the function of civil law to maintain an old social order in the face of a torrent of change. It is not entirely inconceivable that society may change back at some time in the future. We may see a fundamental reversal of what is happening now. Monogamy may again become the order of the day and the day might arrive when marital breakdown will virtually be a thing of the past. Can anybody in the anti-divorce lobby argue that if that situation comes about the laws should not be changed accordingly to reflect that if divorce goes through on this occasion?

The issue before the people in this referendum is whether the case for a sympathetic approach and good law which reflects reality should outweigh the negative consequences — and there will be negative consequences — which arrive from whatever increase in marital breakdown which result from the introduction of divorce. That may depend on how substantially one thinks the introduction of divorce will increase the incidence of marital breakdown. On balance, it is my view that the case for the sympathetic approach and good law outweighs the consequences arising from an increase in marital breakdown which, in any event, will be marginal.

I stated earlier that I could not believe what I was hearing from various Government spokespersons. It is also true to say that I cannot believe what I am not hearing, which is a straight answer to the question of how much is going to be spent by the Government on funding the divorce campaign and how, precisely, it is going to be spent.

Initially the Government announced that the £500,000 would be spent on actively promoting the "yes" case. We were then told it would be spent on educating the people on the consequences and implications of divorce. We were told later there would be an information leaflet in which both sides of the case would be stated and that the balance of the funding would be used to finance an information campaign which would advocate a "yes" vote. The Minister and the Government repeatedly told us on national television that the figure was not £500,000 but £250,000. I urge the Minister, when he concludes this debate, to come clean on this issue.

The Government is rightly sponsoring the campaign but the idea of it providing education on the issue is dishonest and is a charade. The people will decide the issue; the Constitution gives them the right to do so. In effect, the Government, which is on one side of the debate, is taking money from the people who will decide the issue in order to educate them about the implications of what they are doing. If it is true that this objective information can be provided by the Government, which is a protagonist on one side, it is equally true that we could provide it differently and give the £500,000 to people who are anti-divorce, who are protagonists on the other side, to provide information. I know what the reaction of the Minister would be if I suggested this but it is the ultimate logic of his position. If protagonists on one side can be in charge of the information campaign, it is equally true and logical that protagonists on the other side can also run that campaign.

People are suspicious because of the furtive and shabby approach so far by the Government to the issue of funding. It should come clean on this issue. It has raised suspicions in people's minds and this will help divert the debate, as happened in 1996. The information campaign is a side issue.

Deputy Woods suggested a formula for future referendum campaigns but he pointed out that it is not too late to do something approximating to his suggestion for this campaign. The Government could do worse than use the model employed by the Government of Finland for its campaign during the Maastricht referendum.

The Government has not announced what it will do about the unacceptable situation of family courts. It has a Law Reform Commission report available to it which clearly sets out what needs to be done to reduce the present chaos which has resulted from the extraordinary increase in business in family courts. The Judicial Separation and Family Law Reform Act, 1989 was introduced without any corresponding provisions on judicial or other resources to meet the increase in business which arose therefrom. Whether or not the people vote "yes", I have no doubt that the family law business arising from marital breakdown will increase. I also have no doubt that if divorce is introduced it will increase further than it otherwise would, although I think this increase will be marginal.

At the last sitting of the south-western family court, Mr. Justice Kevin O'Higgins was presented with approximately 59 family law cases to deal with on a single day. The corresponding figure in Trim, County Meath, was in the order of 78 and in Dundalk it was 88.

People who have been before family courts come to me to complain and I am sure they also go to other public representatives. They have a great sense of grievance and feel they did not get their day in court. They feel they were not listened to and that the issues in their cases were not properly debated and adjudicated on because the cases were too rushed. If in this chaotic situation more business is created without any corresponding increase in judicial and other back up resources, it will be reduced to a Kafkaesque nightmare.

If these matters are dealt with and people on the pro-divorce and anti-divorce sides deal honestly with the real issues of the campaign, regardless of the outcome and of how little or large the margin of victory is, we will minimise the prospect of residual bitterness and refusal to accept the result, as was the case in 1986 in spite of the disappointment of those on the losing side. This would be healthy in a democracy.

Mr. Bree

I welcome the debate on this amendment to the Constitution. When the Labour Party entered Government with Fianna Fáil, we ensured that the Programme for a Partnership Government included proposals for a major programme of family law reform which would culminate in a referendum on divorce. Along with appointing a Minister for Equality and Law Reform, we also said we would pursue a broad programme of institutional, administrative and legislative reform aimed at enhancing the rights of women.

With the formation of the Government of Renewal, that overall philosophy was maintained and in its programme the new Government promised that a referendum to remove the constitutional ban on divorce and allow for remarriage on the basis of irretrievable breakdown would be held in 1995. The programme said the parties in the Government would recommend a "yes" vote in the referendum and it further stated that in advance of the referendum a comprehensive paper would be published indicating the text of the amendment proposed by the Government and addressing issues such as the protection of children, taxation, social welfare, inheritance laws and pension entitlements.

At the same time we said we would complete the steps necessary to ensure that all dependent spouses and children would be fully protected, that the family mediation service would be strengthened and expanded and that the family courts would be strengthened. This overall programme relating to the protection of the family and the proposed divorce referendum has all party support because all parties recognise that marriage breakdown has become an unfortunate reality of Irish life and that the rights of children and dependent spouses need to be taken care of.

The Government and every party represented in this Parliament recognise the family as a fundamental part of society and we are committed to legislation designed to help families. We also recognise that despite everyone's best efforts, relationships can and do break down and that the absence of divorce has not prevented marriage breakdown in Ireland. Over 70,000 people are in marriages which have broken down and many would like the opportunity to remarry. However, the unfortunate reality is that our Constitution and laws as they now stand fail to give legal recognition to the position of irretrievable breakdown experienced by large numbers of spouses. We have legal remedies equivalent to divorce in every respect except one, which is the right to remarry.

Article 41.3.2 of the Constitution states that "No law shall be enacted providing for the grant of a dissolution of marriage." In essence this constitutes an actual threat to family life by forbidding the possibility of divorce and remarriage.

Considering the existence of widespread evidence of marriage breakdown and the suffering of those who endure it without any means of re-establishing themselves in society, it is time the Government set a date for a referendum to give the right to remarry to couples whose previous marriages have irretrievably broken down.

Today, the Government recognises the family as a fundamental part of society and is committed to legislation designed to help families. It has set up a commission on the family to advise on family issues in the context of a changing economic and social environment. However, notwithstanding increased Government supports, marriage breakdown is still with us and is increasing.

Those in favour of divorce base their case on a number of factors: the existence of marriage breakdown in all social classes and in all parts of the country; the need to remove the sense of isolation and insecurity felt by those whose marriages have failed; the importance of ensuring the dignity and freedom of the person whose marriage has failed by giving him or her the choice of remarrying; the desirability of giving full recognition to the growing number of relationships already entered into by persons whose first marriages have failed; the need to correct the injustice and double standards of our laws which permit church annulments while not recognising remarriage; and, of course, the importance of having family laws which correctly reflect social realities so that they can command the respect of all the people.

In recent times the anti-divorce lobby has argued that the removal of the constitutional ban on divorce would seriously damage children. This is nonsense. There is no evidence that children of divorced parents do any better or worse than children of parents who are separated. Research has shown that marriage breakdown can damage some children and in that context it would be more honest to say that it is the marriage breakdown, and not any subsequent divorce, which might damage children.

Marriage breakdown does not happen in the courtroom, it happens in the home and in the heart. The availability of divorce does not cause this type of breakdown. Obviously, the breakdown is always devastating for those concerned. When a broken marriage cannot be repaired many would see divorce as the beginning of a healing process, a legal statement whereby people can go on with their lives in a forthright and mature manner.

There is strong evidence that marriage breakdown can be made less stressful for children if it is handled in an open and responsible way and if it involves sensible arrangements about custody and access. In an effort to address this issue and protect children affected by marriage breakdown, substantially increased funding has been provided for counselling and mediation services. Our overall objective is to try to help parents resolve their differences or, if they cannot do that, to help them manage their conflict in a way which least damages their children.

I would have preferred to see a simple amendment to the Constitution which would delete the ban on divorce and permit the Oireachtas to grant the dissolution of marriage subject to such conditions as might be prescribed by law. However, I am aware of the tactics of many of the extreme right wing activists in the anti-divorce lobby who would manipulate and twist the facts to suggest that the Government wished to introduce a quickie divorce culture. I am also aware of concerns expressed by conservative Fianna Fáil members who would not be prepared to support a more liberal approach to the issue.

In this context I can understand the proposal from the Government. Central to the Government's position on divorce is the need to protect the family and the institution of marriage while at the same time providing remedies for the increasing numbers of cases of irretrievable breakdown.

In many other countries divorce is available after only short waiting periods, but the proposal before us involves a substantial separation period. The spouses must have lived apart for a period or periods amounting to four years out of the previous five years before making a divorce application. This can hardly be called the introduction of a divorce culture. It must be remembered that there can be no change in such conditions unless or until the people decide to make a change in another referendum.

In the last ten years successive Governments have introduced many changes to family law. Throughout that time it has been clear that the process of reform in family law could not be completed without addressing the issue of remarriage. The one issue that remains after all the legislative and administrative changes of the last ten years is whether a right to remarry should exist for those whose marriages have irretrievably broken down. I am convinced, as are the great majority of people on this island, that to continue to deny such a right would represent a grave injustice to thousands of individuals.

In everything it has done in the course of its preparations for the referendum, the Government has sought to take into account its duty to the institution of marriage, the family and particularly the rights of children. To the best of its ability, the Government has balanced the needs of a society in which the family has always been central, with the needs of many thousands of people trapped in the pain of failed marriages.

Despite widespread support for the right to divorce and remarry in consecutive opinion polls, we can ill afford to take things for granted. I well remember the last divorce campaign and I am aware of the extreme right wing activists who have attempted to dictate Ireland's social agenda over the years and attempted to undermine the democratic consensus on every proposal for progress and change. They use the politics of fear as one of their major weapons.

During their last campaign against divorce they suggested that people in working class areas would lose their social benefits and people in middle class areas would lose their pension rights. They suggested that farmers would lose their holdings and that a divorced woman would be like a secondhand car. The unfortunate reality is that due to Government inactivity at that time their scare tactics worked. In recent years these same elements have been organising to defeat this new proposal to introduce the right to divorce and to remarry.

Like the Orange Order in the North, we have our own equivalent here in the South — the Knights of Columbanus, a patriarchal, sectarian, secretive and fundamentalist network of influential men who have exerted power and influence in all sectors of society. While some people might be under the impression that the Knights of Columbanus is a type of charitable organisation, this is not the case. The reality is that in the North the Orange Order wants a Protestant state for a Protestant people, and in the South the Knights of Columbanus want a Catholic state for a Catholic people. In the North the Orange Order has represented the most backward and reactionary elements in society and, likewise, the Knights of Columbanus represent the most reactionary and conservative elements in southern society.

Having entered active politics at the age of 16, I can recollect the activities of the knights and other fundamentalists over the years. For decades they ensured that people were denied the basic right to plan a family. They fought tooth and nail to maintain the ban on contraception without any consideration of the consequences for women's health and life expectancy. They were the people, also, who remained silent regarding the lack of family home protection legislation which might protect women and families.

When Mary Robinson and other progressive politicians attempted to bring about change in relation to the availability of contraceptives and family planning in the early 1970s, the same fundamentalists including the Knights of Columbanus vociferously opposed them. At that time, the late Archbishop of Dublin, John Charles McQuaid, denounced artificial methods of contraception stating that any successful attempt to legalise them would gravely damage private and public morality. He said it would remain a curse upon our country.

Decade after decade, year after year, the Knights of Columbanus have manipulated the activities of the fundamentalist movement and the right wing extremists in their ongoing campaign to dictate Ireland's social agenda on matters such as family planning, sex education, women's health, the protection of the family or the right to remarry. Fortunately, the fundamentalists and the Knights of Columbanus are now being resisted more than ever before. Despite the fact that they wish to remain in the background where they can manipulate and influence the agenda in a subtle and simple manner, events in recent years have exposed them and people are now becoming aware of the negative and reactionary role they have played in the recent history of our country. If these fundamentalists had their way, there would be no access to birth control in Ireland, doctors would not be allowed to prescribe the pill and retail outlets would not be allowed to sell contraceptives. Consequently, the number of people going to England for abortions would increase, women's health clinics would be closed down because of their family planning services, books would be banned, rape crisis centres would be closed, sex education in schools would be unheard of and women would be treated as second class citizens.

I am proud that politicians are now facing down the extremists and fundamentalists on many fronts. We must do so if our democracy is to survive and develop. We must say to these people that if they want to dictate policy from now on, they must place their names on the ballot paper and face the electorate. They must not be allowed to manipulate events through secret meetings in Dublin 4.

The nature of family life in Ireland has changed dramatically over the past 30 years. The immense social, cultural and economic changes which have occurred since the 1960s have altered family structures. Family life is similar to that of our European partners, including a falling marriage rate, an increase in the number of children born outside traditional structures and an increase in the incidence of marital breakdown. Many people wish to ignore these changes and bury their heads in the sand. However, any society which is concerned about the well-being of its children and its family structures has a duty to respond to these changes, which necessitate ongoing reform of our legal system and social life.

The only mature response to marital breakdown in Ireland is to allow divorce so that separated people have a chance to begin again. Divorce is a civil right and it is incredible that people in a modern society are forced to remain tied to a marriage that has long ceased to exist as a loving and supporting relationship. Divorce provides people with the opportunity to restart their lives and bestows on them their full rights as individuals. We already have judicial separation and the only difference between judicial separation and divorce is the right to remarry.

There is no lack of compassion and humanity in the people. When the public has an opportunity of considering all the implications of this constitutional amendment, it will throw its weight behind it. A sizeable number of people in Ireland are against divorce because the Catholic Church is against it. However, Ireland is a changing society and more people are recognising that other citizens either belong to different religions or to no religion at all. Allowing everyone the right to divorce and remarry, if they so wish, would be a step towards the republic of Connolly and Pearse, a pluralist republic which will unite Catholic, Protestant and Dissenter.

Many marriages in Ireland are already over. It is hypocritical to pretend that marital breakdown does not exist here. A "yes" vote will help to create a progressive society which is more honest, tolerant and open and in which respect is given to different and diverse forms of family relationships.

Mr. N. Ahern

I do not have a problem with giving the public the opportunity to express its views on whether the ban on divorce should remain. This is a democratic process and we all agree that a referendum represents the ultimate in democracy.

I expressed my views on this issue during the debate on the Referendum Act, 1994. I could quote from that because my views do not cause me any embarrassment 18 months later. I expressed the view that Governments should facilitate referenda without controlling them. They should provide information fairly and give people the opportunity to put forward their points of view.

I support this referendum because opinion polls show that a sizeable number of people want the opportunity to express their views. We should have a referendum on issues such as bail laws or abortion if opinion polls show that a substantial number of people, for example, 35 per cent, want it. However, we must have a fair referendum and both sides in the campaign must be properly funded. It is an unequal battle if £500,000 is made available to the pro-divorce side and only a legal leaflet is made available to the anti-divorce people. This last gesture was only agreed to by the Government when it was reminded of the statements made before it came to Government by the Taoiseach, Deputy John Bruton, and the Minister of State, Deputy Rabbitte.

There is a case to be made for public moneys to be spent on both sides of the argument in this referendum and in other national debates on major constitutional change. Some agreement must be reached in the long term on the procedures for fair referenda and legislation should be introduced to control this area. The purpose of a referendum is to refer a matter to the people for their decision. For this purpose, the people should be given as much factual information as possible.

The Government's decision to give the advertising contract for the campaign to Quinn McDonnell Pattison Ltd. is a disgrace. We know that Mr. Conor Quinn, brother of the Minister for Finance, is a senior partner in this firm. I know nothing about the firm, but I am sure it is a professional and competent agency. However, if a Fianna Fáil Government gave a contract to the brother of a Cabinet Minister, there would be uproar in the media. However, this issue seems to have passed by with only a whimper. The media should examine why they seem to adopt different standards for different parties. Perhaps they feel the Labour Party is just being consistent in doing what it has done since 1992, that is, giving every possible job to their families or friends.

The argument for divorce is based on sad cases and relies on our Christianity and generosity for a fair hearing. We have heard of many sad cases where the understanding thing to do would be to allow divorce. However, many of these hard cases have been solved by the legislation introduced over the past ten years. Should we legislate for the individual sad case or for the common good of society? If divorce is introduced, are we helping some while, at the same time, destabilising and demeaning the 96 per cent of stable marriages? We are told it is a civil right to allow people to remarry. However, there are many civil rights and liberties which must be set aside or curbed for the common good. The cult of individualism has gone too far. Does it mean that the maximisation of individual rights or liberties is equal to the maximisation of the common good? I find it extraordinary that many commentators argue for the rights of the individual when discussing divorce and other social issues. When the same people are talking about economic issues, they speak very much against individualism. Experience of economic issues over the last 15 to 20 years has shown that individualism leads to greed and that which was fostered and promoted by Thatcherism. It is extraordinary that the people who find themselves on one side of the argument on social issues are on the other side when it comes to economics and issues of greed.

There are different groups on both sides of the referendum campaign. I hope that over the coming weeks there will be an open debate in which all the individuals and groups concerned will participate. I hope we will find some genuine liberalism and that people will be tolerant enough to listen to opposing views. To date I have found it extraordinary that some Government Ministers — specifically Deputy Michael D. Higgins and Deputy Burton — feel obliged to speak out loud and clear every time a Catholic bishop speaks his mind. Labour Party Ministers and Deputies will have to shed their arrogance and intolerance and control their own utterances and those of loose cannons such as Niall Stokes.

I hope that the church will take a full part in the debate in the coming weeks and that it does not allow itself to be frightened away from presenting its moral teaching. The church has a right and a duty to present its point of view, as has any other group in society. I hope they will make a timely and meaningful contribution to the debate and that they do not, as they did on previous occasions, make lofty theological statements in the last hours before polling day. If one wants to have an influence, there is no point in waiting until the race is nearly over.

The church has been almost browbeaten for 20 years by knockers and agnostics in the media, some of whom hardly know what the inside of a church looks like. If it were not for Archbishop Connell and a few of his colleagues, we would hardly know the Catholic teaching on many issues nowadays. The church has allowed itself to be browbeaten and has withdrawn. It is almost over concerned about offending parishioners by forcefully pressing their point of view as they and any other group has a right to do.

As legislators it is not our responsibility to uphold the church's view on morality. However, this is a mainly Christian and indeed Catholic country. It is right and proper that we bear this in mind when passing legislation which should conform with, or evolve from, the norms and ethos of our society. With all the demands for secularism and pluralism, one wonders when there will be a demand to have the rest day on Tuesday or Wednesday rather than Sunday lest it be identified with some church groups.

The campaign against some church figures in recent days has been an absolute disgrace and journalism should hang its head in shame. I realise that following the closure of the Irish Press, there is much competition in journalism but it must be one of the few professions where competition leads to a drop rather than an improvement in standards. I believe that this campaign is orchestrated and designed specifically with this referendum in mind and constitutes an effort to undermine and weaken the church's influence. I find it difficult to believe this has happened at this time by accident.

I have to be honest and say that I voted against the introduction of divorce in 1986. I am not an ultra conservative; neither would I be in the natural constituency of those who are constantly pushing for social change. However, I have heard nothing in this debate so far which would encourage me to vote in favour of divorce. If anything, as days go by, I find myself slipping further into the anti-divorce lobby. However there are many weeks left so the Minister should get working on me and others in society.

I am aware that almost 4,000 couples have been separated under the Judicial Separation and Family Law Reform Act, 1989. However, I would like to see some further analysis of the numbers detailed in the last census. I would like to know specifically how many of them are on social welfare or paying differential rents to local authorities. We all know that there are many people in those categories who pretend to be separated for financial reasons. Because the State, in its wisdom, has been very favourable, it often pays people to move out of a private house and rent cheaply from a corporation or county council.

We are told that divorce exists in Ireland in everything but name — I think that was the Minister's own statement. Why then do we need it? This question has not been answered satisfactorily. Previously, there was an argument that divorce was necessary because of the legal limbo in which many people found themselves. However, we are told that over the last ten years legislation has dealt with most of those problems and that all we need now is the right to remarry. Must we have divorce so people in second relationships can refer to their partner as husband or wife? If there are more telling reasons, they should be spelt out and explained. This certainly has not happened to date. The Minister mentioned dignity and status and talked about giving people a sense of worth. Are we just talking about status and dignity at this stage? If there is more to it than that, the Minister should have it spelt out loud and clear for his own benefit.

I fully realise that every marriage is not made in heaven. We all understand that some marriages will, unfortunately, break down. This has long been recognised by church authorities which have adopted a much more caring and compassionate approach to such marriages than the State through the granting of annulments. They may have created a legal limbo but they represented a genuine attempt to recognise difficulties in some marriages. One must give credit to the church for trying to be more flexible and caring than the State in some cases.

Marriage is a commitment to a life long relationship. Many feel that the introduction of divorce will undermine every marriage in the State and inevitably have disastrous social consequences, as has happened abroad. We must ask what effect divorce would have on other marriages. Would it have a widespread destabilising effect on marriages which would otherwise remain intact? I firmly believe that divorce damages society and has a traumatic effect on children. I am aware of the marriage breakdown situation but the question is whether divorce will improve matters or make them worse. We may help solve the problems of the 3.5 per cent of marriages which, sadly, have broken down but will we put the other 96 per cent of marriages at risk?

Internationally, there seems to be a realisation that easy divorce is not a solution. Why must we go through the same trauma to learn the same lessons which can be observed abroad? Oddly enough, the liberal consensus on divorce seems to be weakening. People are starting to accept arguments about its psychological effects on children, the poverty culture and so on. Indeed, this attitude seems to have reached our own Cabinet Ministers. The Minister for Social Welfare, Deputy De Rossa, recently said that Ireland must accept divorce because, with international opposition hardening, it is a case of now or never. Deputy De Rossa, like many liberals pushing for divorce, seems to be locked in his own time warp in the 1970s and is still trying to achieve a radical agenda from that time, although international experience would suggest that things have moved on. Are we trying to give people what is good for them or that towards which we or members of the Cabinet are ideologically driven?

The Minister has said the ability to remarry is the essential difference between divorce and judicial separation. If this is all we are trying to achieve, we must ask why bother? We are told that the legal framework is now in place to manage the breakdown of marriage and organise civil separation. Why must we go further and put the 96 per cent of sound marriages at risk in order to give a tag of respectability to a relatively small number of second relationships?

Bringing in divorce abolishes marriage as we know it. Marriage up until now was lifelong, based on a permanent commitment. If divorce is introduced, every marriage in the State is made temporary in the eyes of the law. Introducing divorce may, at first, seem to affect just a few separated people who want to remarry but it may soon spread and undermine many stable marriages to the extent that it abolishes lifelong marriage and the family which is based on it. With all the legislation introduced over the last ten years, is there anything now denied to a couple in a second relationship other than the official legal recognition of a married union? Can some form of notification or registration of the second relationship not be introduced which would give the status being sought without undermining all existing sound marriages?

I object to the use of the phrase the "right to remarry" in the Title of the Bill. This is a blatant attempt to disguise the real purpose of the Bill. It is about divorce. It is about the ending of a marriage and we may as well be honest and straight and call it what it is. In fact, one could say that we already have the right to remarry in certain cases if a spouse dies. The Bill is about divorce and not the right to remarry.

It is also extraordinary that we are moving so quickly to no fault divorce. Internationally, most countries started with a fault type of divorce and only after many years moved on to what we are currently recommending.

I have grave doubts about the introduction of divorce. In summary, my reservations are based on the effect on children and the damage it will do to society and the common good. I hope the public will study all sides of the argument deeply in the coming weeks. I hope there will be a high turnout on 24 November and that the people make a clear choice as to the future direction they wish society to take.

This is a referendum. It is the ultimate in democracy. The people have the final say. We have a duty to put the case to them fairly so that they can make an informed and reasoned decision. There may well be an argument that some people deserve to be given a second chance. However, there is no argument whatsoever that they should be given a third, fourth or fifth chance and that seems to be built into what we are putting to the people.

We cannot continue having a referendum on the divorce issue every nine years. Before the referendum, the Minister should lay down future policy on this matter. The Government should give an undertaking that, say in 15 or 20 years time, there will be a referendum if a substantial number of people request it. It should not be a case of having referendums to change the Constitution and allow divorce and continuing to push that door until it is finally opened. An undertaking should be given that in ten or 15 years time, irrespective of the result this time, if opinion polls show the people would like to vote again, they will be given that opportunity.

Since the Chair has allowed me to continue, I want to address the part of my speech which I skipped. One interpretation of the wording of the referendum that persons could get divorced if they were living apart for four of the last five years is that it means "quickie" divorce for somebody within the first year of marriage on the grounds that they were not living together before marriage. I know that is not what is intended but people are nervous after the previous referenda dating back to 1983 when, some years later, the courts ruled that people who had voted one way had really voted the other.

I also have great concern about how one proves people are separated. Are they separated or are they living under the one roof? It would not be right for people, by agreement or otherwise, to say that they have been separated for the last four years. I would like to think that this is the sort of issue we can take up on Committee Stage. There would have to be some system of notification of separation whereby, within the first year or so of separation, one would have to record that fact.

If there must be divorce, I totally agree with the philosophy that putting this into the Constitution is the most likely way to bring many fair minded people on board because people have found in the past that they could not trust their politicians. I want to see a little hardening on that issue. A couple could not say they were living apart or that the husband has been living in the box-room for the last four years and that they should be allowed divorce. If the four years provision is to mean anything, it must be tied down a little better.

Minister for Arts, Culture and the Gaeltacht (Mr. M. Higgins)

Tá áthas orm go bhfuil seans agam labhair sa díospóireacht seo riomh an reifreann. Reifreann, dár ndóigh, atá fíor thabhachtach do muintir na h-Éireann uilig, ní amháin iadsan, b'fheidir, ag a bhfuil suim ar leith acu ann toisc go bhfuil tionachar díreach ar a saol faoin na leasaithe go mbeimíd in ann déanamh.

I welcome the opportunity to speak on this legislation preparing for the referendum. Immediately, let me discount any suggestion that there was some elaborate conspiracy recently hatched to dislodge any particular interest or that that is what is at stake. I was a Member of Seanad Éireann in the period 1973-77. I recall being one of the cosponsors of the second attempt to allow family planning legislation to be introduced into this country. It is one of the most welcome changes in Ireland that we do not have the atmosphere now which prevailed then. It was an offensive atmosphere, one which was not marked by the tolerance of which the last Deputy spoke.

I also recall early attempts to abolish the status of illegitimacy being referred to by otherwise well meaning people as "socialism under the sheets". People did not really care that children could go through life stigmatised and separated from other children. People did not seem to imagine that women could be unable to exercise control over the decision to have children. People did not seem to care about the conditions which prevailed in relation to adoption.

It was my lot to speak of these matters in the seventies and again in the nineties. For much of that period I was, in another part of my life, a sociologist and I worked in the social sciences. I often think back and ask myself one question: was that a golden age, the seventies, a period that was full of these intolerances to women, families, children and people who had adopted children? What was superior about it? On reflection I think it was a society comprehensively characterised by fear and an abuse of authority, an authority which was later to be more comprehensively abused. What I learned from those discussions of the seventies and the debates we had in the eighties and nineties is that we have dragged ourselves to the point where now we may be able to discuss matters upon which there are legitimate and genuine differences in a more civilised way.

The referendum will be about more than the right to remarry and it is important for us to be forthright about this. For some people it will be about the right to put an end to a marriage which has not worked and has caused grief and hurt the continuance of which would do irreparable damage in comparison to the consequence of its being formally ended. It is about the right to remarry and to rightfully end that which has irretrievably broken down.

It would be silly for me or anyone else to suggest that life will be the exact same after a "yes" vote in the referendum since the legal position will have changed. As I listened to the previous speaker I asked myself about the 96 per cent of marriages which are supposed to be threatened by a "yes" vote in the referendum. What wonderful effect did the "no" vote in the last referendum have on marriages? Did people write to the papers, telephone radio programmes and go on television to say their lives and marriages were a thousand times better because the electorate voted "no"? When the votes were being counted in the last referendum people told me they did not think they could go through it again. What they meant was that they had hoped for a change but it had not happened. As they left the polling stations they thought they would not have another chance. There are no winners or losers on occasions like this.

Deputy Noel Ahern referred to my comments on a radio programme in reply to statements made by the Archbishop of Dublin, Dr. O'Connell. I was replying to a statement in which it was suggested that political leaders in favour of divorce were sending the wrong moral messages to people. I did not question Dr. O'Connell's right to express his views but I object to his suggestion that those who hold an alternative political opinion are less than moral. This comment is offensive and inaccurate. It is intolerant of a person to think he should not only be the sole arbiter of what is moral but that his version should be given a unique and special representation.

This referendum is about the right to remarry and I object to the suggestion that it will give respectability to second unions. People in second relationships are respectable by any definition of that word and they are not seeking respectability. I ask those who argue the opposite case — I appreciate that they are developing a viewpoint — what is morally superior about evasion. I am at a loss to understand the advantage of telling someone with three or four children that their marriage is annulled and that their children are factually but not legally there. This evasion sends a bad signal in terms of the courage required to achieve a balance between the law, society and moral structures. Many people with different traditions and tendencies, intellectually and otherwise, try to be moral. We try to respect that and build tolerance around it but the law applies to all citizens, to those of no denomination and different denominations. As legislators we must try to strike the best balance we can in arriving at the best solution, often between competing versions of the common good.

I thank the Deputies on all sides of the House who realise this is a complex issue and have been willing to change their minds and say that as legislators we must realistically recognise that before we decided this issue marriages had broken down. That process was not initiated by the availability of divorce and neither was it stopped by the non-availability of divorce. We are trying to achieve a humane and balanced adjustment of the law to cater for reality.

To those who give lectures on morality, how moral is it to stay silent on a matter which does not affect oneself but which affects 75,000 people? To suggest that 75,000 people constitute hard cases which need not be taken into consideration in comparison with the wider population is very curious. It is also the distinction referred to in the previous contribution between individualism and personal freedom, the difference between individualism in an economic sense that has destroyed so many social values during the past 15 years and concepts of personal freedom. The philosophy of personal freedom means respecting the rights of every person in which case the argument for changing the law on divorce falls on all of us; we will be lessened as a society if the legal regime is uncompassionate, without care and deliberately authoritarian. I take pleasure in saying that I not only support a "yes" vote in the referendum but intend to make the case for it as it is the sign of a compassionate and caring society. Many people would put a different structure on the question being put but there is consensus that the time has come to do at least this much.

It has been said that 96 per cent of marriages will automatically be in more danger the day after the referendum. This raises more questions about marriages than it does about the law. Maybe it is a question we should ask ourselves more often in terms of the responsibilities involved. During the two decades I practised as a sociologist I spent much of my time looking at the havoc created by cultures of fear. One does not create good marriages by locking people irrevocably into them. One does not create wonderful children by telling them they have to stay in the scenes of conflict. One does not respect women by telling them they have had their one chance, they have made their bed and must now lie in it. These are the marks of a dreadful, uncaring, harsh, tyrannical and authoritarian society to which we must say goodbye as soon as possible.

It was not a golden age. I lived in the countryside, and I lived in towns and cities. People like to tell us that, if we could go marching back to that dark time, we would be marching into some pleasurable situation. When one thinks of the changes that have taken place, it has not been a fall from some garden of Eden. One study mentions a woman whose husband never spoke her name after they got married but said "are you there, Mrs" or "is the tea ready, Mrs". All of this beautiful "garden of Eden" communication went on.

We are challenged by the changes that will take place to be human and compassionate. I hope we will listen to each other in this debate. I listen to people who make the case against divorce. I can understand it and will not deny that life will not be the same afterwards. As we handle marital breakdown and adjust to it and the legislation required, many suggestions made by them in regard to support for marriage will still be necessary. What is important is that we will have ended some comprehensive evasions, for example, annulment. I have never understood that — perhaps I am not gifted enough to understand it. I do know that telling people that their marriages are fictions never convinced me. It is much better for the law to be the law and for people to have a legal existence.

I also think that we are encouraged outside an atmosphere of fear, threat and intimidation. It would be horrific, for example, to have grade A marriages, grade B marriages and third or fourth marriages which one would not recognise at all. It would be like the Scottish football league. It would not impress enormously. If a church has a view, of course it is entitled to preach it. I stand for that. However, I object to any representative of any church suggesting that because I do not follow a single denominational line as they would judge it, I am less moral or less socially convinced. I repeat what I have said both on the airwaves and here this afternoon. I find such a remark offensive. I also find it arrogant and quite intolerant. It is an intolerance we could do without.

As we enter this debate in a better atmosphere, few of us will want to see a repeat of the dissension and the divisions which characterised the 1986 divorce campaign. Some of the fears will have been allayed by the comprehensive legislative programme that has been built up. My colleague, the Minister for Equality and Law Reform, Deputy Taylor, has said that there are protections of marriage and of the rights and entitlements of those whose marriages have irretrievably broken down.

There were many questions in 1986 to which there were not sufficiently clear answers. This provided an opportunity not just for confusion but for exploitation of the Constitution. Legislation and family law reform since 1986 have gone a very long way. In 1987 we had the Status of Children Act, in 1989 the Judicial Separation Family Law Reform Act, in 1994 the Maintenance Act and the Family Law Bill of 1994 which will deal with pensions and arrangements. Many issues have been dealt with which should not be left vague and which would otherwise have bothered people.

To those who say we should legislate not for hard or sad cases I counter that I hold the opposite view. The test of good legislation is the degree to which it takes into account persons or individuals who are not in a majority. I spent 20 years in the United States, England and Ireland as a sociologist. I caution, though, against these instant analyses of society. If there have been abuses in those 20 years, it is in the making of assumptions and the use of findings to make statements of a general nature which are without substance. What is meant, for example, by a divorce culture? This is a cliché. What we are talking about is a society in which a large number of marriages have irretrievably broken down. So we have to choose between the cliché, and responding to the reality and making our law fit it.

Regarding the statements made about those people who hold views such as mine — not, I emphasise, directed at me only — that they are knockers and agnostics, I would only say that beyond the social effects and the need to address the legal effects adequately, it is very wrong to assume that compassion, values and so on must have a trade mark on them to qualify as spiritual. There is very often a degree of compassion and a great heroism in people in second unions who, when the law would not recognise their situation and regarded their children as illegal, and who were sometimes told that their marriages were fictional, continued on as households with compassion and caring and responsibility. To say that these people, somehow or another, are less than a family that is sealed by fear and told they are stuck together whether they like it or not is a horrific image. What we are stuck with is being legislators, in a Legislature in a State where we will be judged by the quality of law, informed by tolerance, able to understand and anxious to put an end to fiction and evasion and, whether it is regarded as moral or not, making the law fit the social situations to which we must respond with compassion.

Mr. Doherty

I would like to share my time with Deputy Haughey.

An Ceann Comhairle

That is agreed.

Mr. Doherty

This debate has evidenced a great degree of maturity in this House in the manner in which Members are approaching a question on which we are not all agreed. My party has decided that it will support the legislation which will allow people to decide whether they want to lift the ban on divorce. That is proper and it would be totally unacceptable for any individual or political party to think otherwise. Equally it has allowed an opportunity for those of us within the party who hold differing views to give expression to those views. I want to assure my colleagues on all sides of this House that I do not propose to think less, morally or otherwise, of anybody who holds different views from mine.

In such an important debate in which major constitutional changes are proposed it is only proper as a result of this debate that we should know that what is being said does not stem from an ulterior motive nor is intended to condemn persons who hold differing opinions.

I do not subscribe to the idea that the removal of the ban on divorce will serve this society well. I am satisfied that the implications of such a change will have serious consequences for marriage and families in the future. The constitutional position of marriage is well stated in our Constitution and we cannot interfere with that without imposing a new situation on families. While "family" is not defined in the Constitution, it is nevertheless recognised as being based on marriage and is protected. In the context of the Constitution it requires and is given all the support the State can muster.

We have been prepared to engage in a series of legislative changes with the ultimate objective to ensure that divorce is the final goal. Many things contribute to irretrievable marriage breakdown or create serious difficulties in marriage and not all of them have been dealt with sufficiently. Over the years the House has commented on the impact of unemployment upon families, homes and marriages. It has recognised that marriage difficulties often result from what has been described for years as "poverty coming in the door and love going out the window." We should not have the romantic notion that marriages properly interpreted as a union for life, necessarily have to be a union of love for life. Many partners have remained in a marriage and the love that was initially evident in the union may not have been evident at a later stage. They were soundly based relationships where the partners recognised their responsibilities and the necessity to ensure that offspring of that union were protected.

We must take into account that under the legislation many difficulties are likely to be unresolved and worsened by the removal of the ban on divorce. I am concerned that a "no fault" divorce system seems to be the preference — a divorce obtainable without the consent of the other partner. To qualify for divorce a couple may live apart in the same house, an extraordinary concept which defeats me. To assist and protect marriages and to underscore the importance of the marriage contract requires more than the availability of divorce. We have heard there are 75,000 people whose marriages have irretrievably broken down. An irretrievably broken marriage does not necessarily suggest that all the people in such marriages want divorce. Account must be taken of the considerable number of people with sound marriages. The direction in which we are going, even in the absence of divorce, is worrying in that there is irretrievable marriage breakdown and an increase in cohabitation or common law marriages. If divorce is introduced, rather than solving a problem, it will worsen current difficulties. The day is fast approaching when there will not be any marriages and consequently no divorces.

The issue of morality was mentioned by the Minister for Arts, Culture and the Gaeltacht, Deputy Higgins. In many quarters morality has the protection of law. Many people consider it necessary to uphold views which a large number of people would support from a position of personal morality. Nevertheless, it would be naive to believe it could be left to people's morality to ensure the right things would be done all the time. In many instances morality needs to be supported by the protection of law. I will not vote on the day of the referendum to lift the ban on divorce. Throughout the campaign I will respect the views of others and I hope I will have an opportunity to express my views more extensively on another occasion.

Mr. Haughey

Like any other society, Irish society is changing rapidly. Political conservatives fully accept this and welcome it as part of the political process. They want to keep what is good and discard what is bad. There is no doubt that there were many bad things in Irish society in the past, domestic violence and child sex abuse, to name but two. Nevertheless there are a good deal of positive things in Irish society such as the central importance of the family. Unfortunately, some believe that everything should be thrown out in an attempt to slavishly imitate other societies for no obvious reason, not recognising that many of them are also constantly changing and re-evaluating their priorities.

As the Irish political system matures, conservatism will no doubt become a respected and acceptable political philosophy, as in the case of the USA. The role of the conservative is to question and debate each proposal and on occasion to slow down the pace of change. That is not a very exciting role, but nevertheless a necessary one in any Parliament. Somebody has to do it. In due course I will be glad to call myself a conservative with a small "c".

The people are about to be asked to make a major decision. Divorce is a controversial issue and the result of the referendum will be a defining moment for Irish society. Divorce will not be introduced because no Irish person wants to pay two ESB bills. That is what a man from Ballybough told me in a pub the night Dublin won the Sam Maguire Cup and no doubt that man does not want to pay more tax, and he has a point.

The forthcoming referendum is not a Church issue as far as most of us are concerned. Let us leave the Church out of this debate. It can fight its battles although it is perfectly entitled to put forward its view on the matter. This referendum will be fought on economic, social and constitutional arguments.

I appeal for a calm and rational debate between now and 24 November. I hope we can demonstrate that we are a mature democracy, capable of taking decisions without tearing ourselves asunder in the process. It would be helpful if the ultra right wing Catholic conservatives and the fully paid up bitter anti-Catholics stayed out of the debate.

I hope it is not too much to expect, however, that anyone who expresses an opinion on divorce over the coming weeks will have that opinion respected. In addition, we should be careful in the language and phrases we use during the campaign. Dramatic language, using adjectives such as "drastic", "disastrous" and "devastating", does not help and only succeeds in raising emotions.

I have been a public representative for the past ten years and in that time I was never canvassed by any person for the introduction of divorce.

Debate adjourned.

Dáil Éireann debate - Wednesday, 27 Sep 1995

An Bille um an gCúigiú Leasú Déag ar an mBunreacht (Uimh. 2), 1995: An Dara Céim (Atógáil). Fifteenth Amendment of the Constitution (No. 2) Bill, 1995: Second Stage (Resumed).

Dáil Éireann debate -
Wednesday, 27 Sep 1995