Dáil Éireann debate -
Thursday, 28 Sep 1995

Vol. 456 No. 2

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 ar Dé Céadaoin, 27 Mean Fomhair 1995:

"Go léifear an Bille an Dara hUair."

The following motion was moved on Wednesday, 27 September 1995, 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. O'Malley

There seems to be some confusion about the title of this Bill, particularly the number of the amendment — 15 — because No. 12 seems to have been skipped in the course of constitutional amendments. It may give rise to difficulties in the future. I understand that No. 12 was skipped because it was defeated. The normal procedure is to then renumber the amending Acts from the start. We had before this Nos. 13 and 14 from the last set of amendments but we have no No. 12.

Since the foundation of this party in 1985, the Progressive Democrats have been at all times seriously concerned about the difficulties to which the 1937 Constitution gives rise. We said so at our foundation and about two years later we published a new draft constitution with a full commentary on it. The new draft constitution was a much shorter and less complex document than the existing Constitution. It sought also to reflect, give expression to and vindicate matters and rights of fundamental importance and to do so in a manner which would be permanently valid for the future in any pluralist, democratic Republic in part or all of this island. In particular, we chose to advocate dropping from the Constitution the many specific and detailed provisions which tend to reflect a particular type of social thinking prevalent in Europe in the 1930s and to replace that redundant and superseded approach with a more concise recital of fundamental principles that one could expect to remain universally true and valid.

Part, at least, of our thinking in this respect was governed by the more than 200 years experience of the Constitution of the United States which, in a most complex society, has stood the test of time notwithstanding the size, diversity and racial and ethnic mix of the United States. It is interesting to reflect that, currently, one of the most harmful consequences of a provision in the US Constitution arises from something that was seen as relevant in the 18th century but is certainly not so now, namely, the provision guaranteeing the right of individual citizens to bear arms. Our Constitution is redolent with such specific and dated provisions, but we have not learned any lessons.

Before the 30th anniversary of our Constitution, the late Seán Lemass saw the need for major amendment of it. As we approach its 60th anniversary now, it is abundantly clear that the need for major and radical reform is urgent and pressing. Replacement is the only really feasible option.

The Government is now proposing in this Bill, with the agreement and support of the Fianna Fáil Party, to add to the detail and complexity and to seek to reflect, to the greatest extent that it can, a particular social view. The Bill in effect makes legislative rather than constitutional proposals but, because it does so in a constitutional framework, it makes their future amendment extremely difficult, even when it becomes abundantly clear that huge problems will have arisen as a result of their interpretation at some time in the future by the Supreme Court.

In our draft constitution, the Progressive Democrats simply omitted any reference to divorce so that the matter could be dealt with by the Legislature. However, it seems that it may well not now be sufficient, as I had once thought, simply to delete Article 41.3.2º from the Constitution. Amending the present Constitution in a piecemeal fashion, as it has been over the years, is quite different to and much less satisfactory than adopting a new Constitution which omits the more manifest defects of the 1937 document. If one is making a single issue amendment, as in this case, one has to read the amendment in the light of the remainder of the Constitution. That requirement has not been taken on board by the draftsmen in this Bill. If this provision is passed by the Oireachtas and accepted by the people in a referendum, the new Article 41.3.2º will have to be read in conjunction with the remainder of the Constitution and, in particular, with the provisions of Articles 41, 42 and 44. It will clearly be in conflict with the ethos and premise underlying those Articles. I am not clear how the Supreme Court will reconcile the obvious conflict. Neither can the Minister be clear as to how the new provision will be interpreted or how the conflicts will be resolved.

This problem arose before in the amendments to Article 29. The treaties listed in the amendments made to that Article were clearly in conflict with numerous other provisions of the Constitution. To overcome the difficulty the amended Article 29.4.3 includes the following:

No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State, necessitated by the obligations of membership of the Communities or prevents laws enacted, acts done or measures adopted by the Communities, or institutions thereof, from having the force of law in the State.

The same need and the same principles surely must apply here to avoid this conflict and to avoid the possible undermining of the very restrictive form of divorce proposed in this amendment.

In my opinion, to prevent internal conflicts in the Constitution and to avoid detailed legislative provisions in the Constitution, this amendment should read along the following lines:

Notwithstanding any other provision of this Constitution, a Court designated by law may grant a dissolution of marriage where it is satisfied that all the conditions prescribed by law are complied with.

If the phrase "notwithstanding any other provision of this Constitution", or something like it, is not used, it means the Supreme Court, in interpreting the proposed amendment, will have to read the remainder of the Constitution and, in particular, the remainder of Article 41 in conjunction with it. This will give rise to a veritable minefield of difficulties. Will the various references in Article 41 to "the Family" be interpreted as applying to the first family or to the second family? If there are two families as a result of two marriages, how can the rights of the family be described as "inalienable and imprescriptible"?

"The Family" is referred to with such awe in Article 41 that it takes on an almost supernatural aura. Although it is not a proper noun, it is spelt with a capital letter wherever it is used and some extravagantly reverential statements are made about it and philosophical guarantees "antecedent and superior to all positive law" are given in relation to it. How can detailed provisions for divorce be contained in such an Article?

The obvious conflict between this amendment, if made, and the remainder of the Article will be litigated at great length and cost and will give rise to huge uncertainty for a long time. The part of Article 41 where "the State pledges itself to guard with special care the institution of Marriage ... and to protect it against attack" seems to be incompatible with what is now proposed will immediately follow it.

I make this argument not to oppose the availability of divorce, which I support, but to express my concern that the passage of this amendment, in this form and without the qualifying words I have suggested, may well result in divorce in practice not being available at all. Even if it is available, the resolution of all the conflicts and incompatibilities will give rise to an endless legal quagmire and will in practice deprive suffering people of what I believe should be their legal right to remarry, if their marriages have irretrievably broken down.

The whole premise on which Article 41 is based is that in all circumstances there can only be one family. That seems to be borne out by section 3.3 which would immediately follow the proposed amendment. If passed in its present form we will have the somewhat ludicrous and totally anomalous situation that the Constitution will recognise divorces obtained in Ireland but will give no recognition to foreign divorces.

Article 42 recognises the family as the primary and natural educator of the child and guarantees to respect the inalienable right and duty of parents to provide for the education of their children. After a divorce who, for the purposes of Article 42, are the parents? Are they the original parents or are they one of the natural parents and his or her new spouse? There is no point in trying to enact law to solve these questions. These are constitutional and not legal provisions. No law has any effect as against them. It must surely be starkly clear to anyone who wants to see that laying down what in effect is detailed social legislation in the Constitution is the height of foolishness.

We already know this with total certainty from the litigation that arose out of the 1983 amendment on abortion. That was a shorter and less complex amendment than now proposed and it was much less in conflict with other provisions in the Constitution than the proposal in this Bill. Nonetheless look at what happened. The X case was tortuous. The High and Supreme Courts were convulsed by what they had to decide. The judgment was unsatisfactory from virtually every point of view and it necessitated no less than three constitutional referenda in its wake, two of which were passed and one of which was rejected. What we are now doing is even more fraught with difficulty. Every word of the 14 lines of this amendment will be dissected and fought about in many of the more bitterly contested divorce actions. The discretion which a court should have to do what seems fair and reasonable in the particular circumstances of a case is taken away from it. It is not just hamstrung by convoluted legislation; it is handcuffed by a convoluted Constitution. Where is the justice in that?

A recent statement by lawyers who specialise in family law calculated that the actual waiting period for a divorce in many cases will be eight years. If a marriage has irretrievably broken down, where is the justice in that, particularly for a woman?

If we must have detailed provisions in our Constitution about divorce, how can we justify not having one word about nullity? Nullity is a far more drastic remedy, with much greater consequences for those involved and their children, than is divorce. Annulment after 20 years of marriage and several children is a mere fiction but somehow, for many people, nullity is respectable and divorce is anathema. We all know why but why does our approach have to reflect the views of one church only? It is a requirement of the Catholic Church in many countries that before an application for nullity will be heard, a civil divorce must be obtained. Will that now become a requirement here? If the church insists on it in other countries why does it condemn it so unreservedly here?

It is necessary to remind the House once again that this is a Republic and that we are legislating for all its people. If we fail to do so, should we be surprised by the reaction in the North? Or is it the truth that, like the Unionists, a majority here is happily partitionist? Above all else a republic cherishes its minorities and values its diversity. Do we?

The proper course for the Government now is to withdraw the form of amendment it is proposing and substitute one which allows the terms and conditions for divorce to be spelled out in law. It is no excuse to say that something is sensitive and therefore its terms must be put in the Constitution so that it cannot easily be changed. If Mr. Haughey had taken that approach as a cop out, we would now have an Article in our Constitution requiring a healthy 25 year old to obtain a doctor's prescription to enable him to buy a condom. We might find it difficult to change something even as patently stupid as that. If the House approves the provisions in this Bill it will pass a vote of no confidence in itself as a Legislature. It will be a celebration of its own mediocrity.

The Taoiseach

I support the amendment to the Constitution to allow persons who have been separated for some years, and between whom there is no hope of reconciliation, to divorce and to be allowed to marry again. I have on the past three evenings had the opportunity of calling on people in their homes in parts of County Dublin and in a rural part of County Westmeath to discuss this issue. I intend to continue to do so throughout the country. I hope, in what I say today, to reflect on some of the concerns and views that were raised personally with me.

Social circumstances have changed dramatically in the past 20 years in Ireland. The number of persons whose marriages have broken down, without hope of reconciliation, has greatly increased. Some marriages have broken up fairly amicably because of basic incompatibility and some have had their marriages annulled by their church. Others have had little choice but to end their marriage relationship because of violence, abuse or the effects of chronic substance addiction.

Some of the people in these tragic situations have remained single but would like to know that they have the opportunity to remarry. Others have already set up home and have had children with a new partner, but their new relationship does not have any of the legal protections that go with a State-recognised marriage. Apart from the lack of the formal and social status conferred by marriage, these couples have lesser rights than married couples in aspects of taxation, of succession rights, of rights to guardianship, and of rights to maintenance in the event that the relationship breaks up.

Let me be more specific so that people can see why a right to the option of remarriage is important. The rights that cohabitees do not have, but that they can gain if they are allowed to remarry, are as follows: (1) Although cohabitants may obtain maintenance for children, they have no claim for maintenance for themselves. (2) Where parents are unmarried, the right of guardianship automatically vests in the mother only and not in both parents, as it will if they are married. The father would have to apply to court to obtain rights of guardianship. This could be contested, and costly in some circumstances. (3) While the courts may make property adjustment orders on granting a decree of judicial separation, there is no similar power to adjust the capital assets of cohabitants no matter how long they may have been cohabiting or how much they may have contributed to one another's assets. The general law of property applies. (4) Unlike a spouse, a cohabitant has no rights of succession to the other's estate. (5) Unlike a married spouse, a cohabitant has no statutory right to occupation or special protection of the home in which he or she resides.

I hope that those who think we do not need the right to remarriage, because cohabitation is sufficient or that things will arrange themselves, will reflect on these important legal points that I have just listed.

Marriage breakdown is a tragedy. It is second only to bereavement in the pain that it causes. Unfortunately, the pain would not be mitigated by the State forcing couples to stay together after their marriage has actually broken down. Irish law already recognises this and already makes arrangements for people to separate. Our law no longer forces people to stay married in other than the most formal sense, but our law does continue to stop them from marrying someone else. I believe that social stability would be promoted if persons whose marriages had broken down irretrievably after a long period of separation were allowed by the State to remarry. This could allow them to create the most stable possible environment in which to rear the children they have through remarriage.

Some have argued that divorce will create additional costs for the State. Marriage breakdown and the splitting of households almost always creates the possibility of additional social welfare costs falling on the State. The problem arises because of marriage breakdown, not because remarriage may be allowed. Indeed, it could be said that remarriage creates at least the possibility that new and more stable financial circumstances can be created in some cases which might relieve the State of some of the costs it would have to meet in continuing to support lone parents.

In parallel with the provision of the right to remarry, I undertake that the Government will do everything possible to support families and to help keep marriages working well. Fiscal, social and educational policies will all be reviewed in order to strengthen the bonds that keep families together. In the short time since this Government has come to office we have supported the establishment of the first ever all party Dáil Committee on the Family, chaired by Deputy Paul McGrath, and an official Commission on the Family has been announced by the Minister for Social Welfare, Deputy Proinsias De Rossa.

These parallel initiatives will allow the first ever review in the history of the State of how Government policy can help couples in the task of making families work. All persons of good will, whatever their political or social viewpoints, will be invited to be involved in these important initiatives in support of the family. This review of family support policy is being undertaken simultaneously at both political and official level to maximise its effectiveness. The Government will also shortly be establishing a Cabinet sub-committee on the rights of children in accordance with the Programme for Government.

We must look objectively and clear-sightedly at all the circumstances that can help to keep families together, and at those that push them apart. Over the past 30 years the focus of social progress has been concentrated on enhancing the rights and social status of women and men in the workplace. Over the next 30 years I hope that the focus for social development will be in enhancing the rights and social status of children, women and men within stable and caring families that provide all with the psychological reassurance we need to face the ups and downs of life.

I would now like to say something about the role that courts can and will play in mitigating the adverse effects on children of marriage breakdown and, indeed, of the divorce that may or may not follow from it. The courts already play a role in ensuring as far as possible that the psychological as well as the material needs of children are met in separation cases, and they will do so in divorce cases also. The Guardianship of Infants Act, which will form part of the divorce legislation, provides that:

in any proceedings before any court, on the custody, guardianship or upbringing of an infant, or on the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration.

This has been interpreted by the courts to include the physical, intellectual, religious, social and moral welfare, as well as the financial welfare, of the child.

It should also be noted that at present the courts have available to them the possibility of suggesting that children be assessed by psychologists or by the probation and welfare services. This involves the assessment of both the parents and children outside the atmosphere of the courts, and often assists judges in arriving at decisions focused on the paramount welfare of the children.

Of course, none of this prevents children suffering the consequences of marriage breakdown which the State cannot prevent. As it is, 4,000 couples a year are involved in legal actions in regard to marriage breakdown. We can and will seek to mitigate its effects on children as best we can.

I hope the House will forgive me if I conclude my contribution by putting it in a personal and party context. On the day I was elected leader of my party in 1990, I said:

Fine Gael has the political courage to place difficult social decisions before the Irish people. Fine Gael has the realism and the compassion to raise the issue of divorce. We believe that our laws should reflect social reality, and that the present situation gives insufficient protection and reassurance to those caught in the reality of broken marriages, particularly to the children. The interest of children in having a supportive family environment will be of paramount concern in all our work on this subject. Indeed, it is concern for children and their future, for the long term as well as for today and tomorrow, that drives our policy on economic matters as well.

I believe that this legislation and the accompanying work we are doing to support the family can be seen as fulfilling that commitment I gave on assuming the leadership of the Fine Gael Party almost five years ago.

Éamon Ó Cuív

Tá áthas orm go bhfuil deis agam labhairt ar an ábhar tábhachtach seo agus freisin go bhfuil deis agam 20 nóiméad iomlán a bheith agam le labhairt faoi. Creidim go bhfuilimid ag dul ag tógadh cinnidh tromchúiseach mar phobal ag deireadh mí na Samhna — cinneadh a mbeidh tionchar aige ar shaol na tíre amach anseo.

Before dealing with the detail of the proposed amendment to the Constitution, I must clarify a few basic facts. I fully respect the right of the people to vote on this issue. As a result, I have no objection in principle to the proposal to amend Article 41.3.2º being put to the people. If I was unwilling to do that, I would be denying the people their right to decide. As someone who values the ultimate sanction of the people in all cases in relation to our Constitution, it is reasonable to respond to a public demand for a vote on the issue. However, I want to clarify that voting for a referendum does not imply support for the proposal. We will vote on Second Stage on whether this issue should be put to the people. I will deal with certain details in relation to the proposal on Committee Stage. Anyone who tries to suggest that those who vote on whether we should have a referendum are supporting the proposal or are hypocritical are being unfair.

We must recognise that no matter how much consensus exists in this House, there are different views on divorce. Everyone admits that it is too close to call at this stage. It is important that diversity is recognised and allowed for on such a fundamental issue. We cannot afford to ignore the strong feelings of so many people. The effort, therefore, by some parties to ensure that only one view is put across in the House is a disservice to the Dáil as the people's representative body. I congratulate my party leader for his courage in allowing a diversity of opinion on the matter, but I regret that such diversity has not been allowed in the other parties.

I protest at any effort by the Government to use State funds to advocate this issue. A referendum must be decided by the people without public money pushing one side or the other. It is also important that information given by the Government about this campaign should be accurate and not propagandist. Unfortunately, the information given to date has been both.

Marriage breakdown is always a tragedy and no legislation can take away the pain and suffering it causes. It seems, therefore, that we should endeavour to lessen the incidence of marriage breakdown instead of trying to pretend that legal remedies, which tend to increase the incidence of breakdown, are the answer to the problem. It would be better if we addressed the issues of poverty, bad housing and unemployment which are contributory factors to marriage breakdown, particularly for the less well-off. It would also be better to direct resources to these areas and to family support services rather than making fat cats out of many legal and other professional people at the expense of the taxpayer.

I am opposed to the introduction of legislation for the dissolution of marriage, particularly in the form proposed. While I recognise that people are in difficult situations as a result of marriage breakdown, I believe that the problems created by the dissolution of marriage far outweigh the problems it solves. Despite the fact that we have an increasing rate of marriage breakdown, it is low compared with jurisdictions in which divorce is available. When we talk about separated people, we mean all separated people, but statistics from other jurisdictions only include divorcees. For example, our marriage breakdown rates, including all separated people, are less than 5 per cent of people ever married.

There were 165,000 divorces in England and Wales in 1993. This is equivalent to a divorce rate of 11,500 per annum for a population of our size. Our rate of legal separation is approximately one quarter of that figure. In other jurisdictions where divorce is freely available, the marriage breakdown rate is as high as four in ten. It is also a fact that the breakdown rate of second marriages is high.

Serious consideration has not been given to the effects of a high rate of marriage breakdown on our society in the long term and the effect on children in particular. Furthermore, there is a need to examine in detail the effect on children not only of marriage breakdown, but also of second marriages. I propose that urgent consideration should be given to appointing experts to examine this aspect of the problem.

A lot of argument has centred recently around the debate on whether the availability of divorce causes an increased rate of marriage breakdown. Statistical evidence seems to indicate it does. It also seems from the statistics produced in the White Paper a number of years ago that the more liberal the regime, the greater the number of divorces sought. For example, the rate of divorce in Britain more than doubled between 1970 and 1975 following the introduction of a more liberal divorce law in 1969. Similarly in Italy where the rate of divorce doubled between 1985 and 1989 following liberalisation of the law in 1987. Yesterday a Minister of State from the Democratic Left Party said we should compare the statistics with Northern Ireland. In 1979 there were 745 divorces in Northern Ireland. By 1991 the number had grown to 2,310, which was three times the rate in 1979, the year the law was liberalised. We would need a separation rate of 5,320 to compare with the rate of divorce in Northern Ireland.

It is easy to understand why the rate of marriage breakdown is greater when the divorce law is more liberal. It seems reasonable that people would consider more seriously the decision and commitment involved when entering into an indissoluble marriage than they would when entering into a marriage which can be dissolved with relative ease. To argue that the commitment in both cases is the same leads one to the conclusion that the chances of a couple in an indissoluble marriage breaking up is statistically the same as for a couple who are living together without any formal marriage. However, everyone knows that is not the case.

There are those who argue that divorce is a civil right. What they are saying is that there is a right to vary the terms of an agreement freely entered into by two adults, the terms of which were known beforehand. That in itself is not a civil right. It might be argued that the right to enter into a dissoluble marriage is a civil right and that the choice provided by the State should not be between living together without marriage and permanent indissoluble marriage. If there is a right to a dissoluble marriage it could be equally argued that people have a right to enter into an indissoluble marriage. Lest I am confusing the Minister, let me simplify that. If one wants to be pluralistic the obvious thing to do would be to give people three choices — the choice of living together, which is perfectly legal, the choice of entering into a dissoluble marriage, and the choice of entering into an indissoluble marriage. That would be the ultimate pluralist solution. The Government has never proposed such a solution because it wants to straitjacket everybody into its way of thinking.

The Government is essentially proposing "no fault" divorce which, in its details and practical implications, is not very different from the divorce regimes common in other parts of Europe. That is probably the intention. The unions have said we should support this for no better reason than that there is divorce in the rest of Europe. That is a most childish and puerile reason for doing anything. In most jurisdictions there is a different number of years required when there is consent by both spouses and when one of the spouses is not consenting. When both spouses consent to divorce the time lapse is as low as one year in some jurisdictions. However, where there is not consent by both, it is more common to have a period of five or six years. In this regard the Government's proposal of four years would seem to be more conservative than that common in Europe for divorce where both parties consent.

However, appearances can deceive. On examination of the operation of the Judicial Separation Act it is seen that where there is consent by both parties the only proof of separation required is a statement in court by one party to the effect that they have been separated for the required period. No further proof is normally required. It seems that the same formula will apply to divorce proceedings.

Mr. Taylor

That is not correct.

Éamon Ó Cuív

That is what happens. Any family lawyer will tell you that.

Mr. Taylor

I am a lawyer, and I tell the Deputy it is not correct.

Éamon Ó Cuív

There are lawyers who are experienced in the courts. As late as last week——

Mr. Taylor

I have experience in the courts.

Éamon Ó Cuív

We will debate that again on Committee Stage.

As regards the safeguards to ensure applicants' awareness of alternatives to divorce proceedings, and to assist attempts at reconciliation, the responsibility rests with the solicitor. What is likely to happen is that solicitors will get applicants for a divorce to sign a document confirming that the conditions of section 5 of the family law (divorce) Act have been complied with, and this will indemnify the solicitor. Anybody who has gone to a solicitor knows that people are given sheets of paper, a formula is gone through, the people sign and are told that a particular problem has now been disposed of.

The "no fault" aspect of the proposal means that people who have had barring orders against them or who have been convicted in court for acts carried out within the family home against family members will be free to get divorced and, without question, to get married again. This includes people convicted of violence against family members, incest etc. Given that 30,000 to 35,000 men are separated at present, the number of such people could be quite significant. If there are 30,000 separated men it is likely that 20,000 or fewer might consider entering into another marriage. According to the Government information paper on the divorce referendum the present rate of barring orders is 4,400 a year. It is therefore reasonable to suppose that there are up to 10,000 separated men who have had a barring order against them at some stage. This could represent a large proportion of the men thinking of remarrying if divorce were available.

I want to raise the question of the annulling of marriages by the Catholic Church. Facts which are not accurate are often bandied about regarding this. Despite people's unwillingness to recognise that the Catholic Church might have anything to offer on any subject, it is interesting to examine the procedure involved in granting annulments. I accept that because of nullity decrees granted by the church, the question of registration of marriage needs to be examined. One of the problems is that in most cases civil and church marriages are entered into simultaneously. However, the number of nullity decrees granted by the Catholic Church in the whole of Ireland is quite small, about 200 a year for the whole 32 counties. Another interesting concept of church nullity decrees is the vetitum. In about 75 per cent of cases ending with a nullity decree a prohibition, called a vetitum, against remarriage in the Catholic Church is imposed on one or both parties. This is because the defect which caused the nullity is adjudged to have been so serious as to put at risk the validity of a further marriage. In other words, decrees of nullity differ in two fundamental aspects from the proposed divorce regime. One is that they are based on the premise that the marriage never existed due to some defect at the time of marriage. Furthermore, in most cases one of the partners is prohibited from remarrying in order to protect the genuine interests of any future spouse. Also the number of nullity decrees is small.

There is no doubt that divorce and legal separation are growth industries. It is evident from the increasing number of family law solicitors and barristers just how lucrative this business is. What is not normally recognised is that the financial bonanza is affecting accountants, estate agents, engineers etc. as well as solicitors and barristers because of the large amount of property transfers involved in marriage break up. Mar deir an sean fhocal "Is olc an ghaoth nach séideann maith do dhuine éigin". I call on all Members of the Dáil, in the spirit of the Ethics Act, who stand to gain financially from the introduction of divorce to declare their interest publicly. At present even with legal separation an earning spouse in a one income family has financial responsibility for only one spouse or partner. However, in a divorce regime where the earning spouse marries again——

(Interruptions.)

Éamon Ó Cuív

I notice the Minister laughing. If I stood to gain a large sum of money as a result of something being introduced here. I am sure there would be an outcry from the Government benches.

Mr. Taylor

The Deputy is not suggesting that I do?

Éamon Ó Cuív

I would not suggest that, but if the cap fits, let it be worn. In any jurisdiction where divorce has been introduced it has been shown time and again that women and children suffer because of poverty. We have an already over-stretched social welfare system. Can anybody explain where all the extra money to meet the extra requirements is to be found? That question must be answered between now and 24 November. Will it be found by further reducing the social welfare rates, or by imposing extra taxation, or are we just going to let people sink?

In summary, I hope there will be a full and open debate on all the consequences of the Government proposal. For my part, because of the damage the introduction of divorce has caused to the fabric of society in other countries, I will vote "no" on 24 November.

Minister of State at the Department of Justice (Ms Burton)

The argument advanced by the previous speaker which supports annulment as a means of dealing with problem marriages astonishes me, particularly when it comes from people who claim to be particularly concerned about the effect of marriage breakdown and divorce on spouses and children.

Éamon Ó Cuív

I just clarified a few points.

Ms Burton

It amazes me that they do not look at the consequences of annulment for spouses and children. Spouses are declared never to have been such so that they have no rights to maintenance and support. Children have the right to maintenance but one must consider the psychological consequences for a child of a declaration that one or both of his parents was essentially inadequate in some respect and that what they thought was a marriage never existed.

The consequences of nullity and annulment are potentially far more damaging than any decree of judicial separation or divorce which is properly structured and which we hope follows a process of mediation and counselling involving both parties.

Éamon Ó Cuív

Who is proposing nullity?

Ms Burton

The Deputy spoke about annulment.

Éamon Ó Cuív

I explained a few facts.

An Leas-Cheann Comhairle

Let us hear the speaker in possession without interruption.

Éamon Ó Cuív

I am being misrepresented.

Ms Burton

People who talk about a divorce culture seek to frighten rather than enlighten the electorate.

Éamon Ó Cuív

Eilís O'Hanlon is doing the same thing.

Ms Burton

Those who argue that the introduction of divorce will bring serial marriage Hollywood style to Ireland would do much better to look at the example of Hollywood, County Down rather than any other Hollywood. Divorce has been available in Northern Ireland for a very long time and nobody, including the Deputy, would suggest Northern Ireland has a divorce culture. Just as in the Republic, people there marry with the intention of remaining married for life. The majority of married people succeed in that objective and do not seem to consider that their marriages are undermined by the existence of the right to divorce.

As in the Republic, a significant minority do not succeed. Are the opponents of divorce seriously suggesting that there is a greater rush to separation and marriage breakdown in Armagh than there is in Dundalk? Both towns are in the Armagh Diocese but I have not heard the clergy of that diocese or any other diocese straddling the Border distinguish between the situations on either side of the Border. In Northern Ireland there are about 2,300 divorces per year and just over 3,000 of what we call judicial separations. This compares with current figures of 4,400 applications for barring orders and almost 3,000 applications for judicial separation in the South.

Éamon Ó Cuív

Some barring orders only last six months. That is manipulation of figures.

Ms Burton

In 1992, there were 9,200 marriages in Northern Ireland, approximately 10 per cent of which involved people who had been previously married. Statistics in the area of marriage breakdown can be very difficult to assess but there is some evidence that a number of people in Northern Ireland whose marriages have broken down do not get divorced. Each year, about 700 more couples go through the equivalent of a judicial separation process than go through divorce.

In Northern Ireland in 1993 — and this is very significant if we want a serious discussion about this important and tragic problem — about 28 per cent of divorces were granted after five to nine years of marriage; 24 per cent were granted after ten to 14 years of marriage and 27 per cent were granted after 15 to 25 years of marriage. There is no suggestion from anyone involved in this debate that the current state of marriage in Drogheda is different from that in Newry or that Derry has a significantly greater problem of marriage breakdown than Letterkenny.

Recently I had the opportunity to meet agencies in Northern Ireland which deal with marriage breakdown counselling and mediation services and with lawyers involved in family law. In discussions with Relate, the principal marriage advisory and counselling service in Northern Ireland, the people who are dealing with marriage breakdown were very clear that the availability of divorce was not the cause of marriage breakdown; that marriages break down whether or not divorce is available; that regard for the institution of marriage is still very high and that people did not rush easily to the divorce courts as the figures illustrating the length of marriages before divorce is sought will show.

Debate adjourned.