That can and is occurring in a separation. We have thousands of cohabiting couples who were formerly married to other people and had children with their spouses and who subsequently have further children in their cohabiting situation. There is an important issue to debate here because the Deputy has got to the crux of this issue, that is, the difference between separation and divorce. That is a key point. We need to sit down in a calm atmosphere and debate the detail of that.
Divorce is nothing new in Irish society. A cursory glance at Irish history, from Brian Boru through to Parnell, shows that. The break with historical continuity in recognising marriage breakdown as a fact of Irish life was the 1937 Constitution. That strange product of its time locks together an excellent set of protections on fundamental rights with a misty-eyed vision of society in which women knew their place in relation to men and men knew their place in relation to the real power of the land.
In the first four decades of its existence, independent Ireland largely dealt with its social problems — poverty, inequality and restricted access to health and education — by ignoring them. In a society ruled by such a mind set, it is not surprising that there was no honesty in how we dealt with family conflict and marriage. Long before we coined the term "deserted wife", we had the problem of wives and children living in Ireland, husbands living in England, whereabouts known or not known, with maintenance paid to the family regularly, irregularly or not at all. For many families, the absence of a father in England meant heartache. For some it meant relief from a violent, drunken presence. For some, the absence was known to be temporary and born of economic necessity; for others, absence for apparently economic reasons was a convenient and socially acceptable cloak for concealing a broken marriage.
The reality is inescapable. De facto separation has existed since the foundation of the State, despite the directive counselling of the 1937 Constitution. It was a very cruel kind of separation, one which merely reinforced the poverty and lack of rights of the women and children involved. I pose the questions: is it better to deal with a problem by trying to keep the lid on it or by trying to tackle it? Is it better to deal with domestic violence by ignoring it or by giving women access to barring orders? Is it better to deal with cases of child sexual abuse by relocating the perpetrators than prosecuting them?
Over the past few years, we in Ireland have had a painful coming to terms with the realities that underlie both our secular and religious pieties, but we still have to go the distance in how we deal realistically with marriage breakdown. Yes, the Judicial Separation and Family Law Reform Act, 1989, has sorted out the critical questions of division of assets, custody of children and maintenance of dependent spouses and children when couples separate. That sacred cow of the previous divorce referendum, the family farm, is considered by the court as one among other assets when it makes its decision in judicial separation, and still the sky has not fallen which suggests that the courts are making sensible pragmatic decisions for farming families, who are no more immune from marriage breakdown than any other occupational group.
Even with the Judicial Separation and Family Law Reform Act, 1989, the women and men involved are left in a legal limbo. Let us not forget also that many of the more amicable separations take place not on foot of the Judicial Separation and Family Law Reform Act, 1989, but in the context of separation agreements. What becomes of you when separated? Of course, you have the right to form a second relationship if that is your choice but you do not, as of now, have the right to legitimise this relationship in society. This is not just a matter of legal recognition, although that is important in itself; it has material consequences for tax and inheritance treatment as well as the self esteem and social recognition for relationships which is very important to many people too.
The anti-divorce lobby would have us preserve Ireland as a divorce free zone, a kind of traditional values theme park but theme parks are by nature places of fantasy; nice to visit but not to live in. It is not as if we have been able to proof society in this country against divorce. Take a very typical Irish situation. A couple separate and the husband goes to England to live and work there. He divorces, remarries and eventually resettles in Ireland. Meanwhile his first wife remains in Ireland and — ironically — the divorce is recognised here. She is free to remarry if she chooses. Let us say she does not so choose. According to English law, recognised here in those circumstances, she is no longer his wife and has no longer an entitlement to derived pension rights based on his social insurance.
How would the introduction of divorce in this country worsen the situation of that not untypical woman? Members might assume that there would be no change in her circumstances. In fact they would be wrong, because the Government, in preparing for a reasoned consideration of the divorce issue, has recognised that dependent spouses and children must be protected and provided for in the determination of the divorce judgment.
For the poorest people, those living on social welfare, we have, through the Social Welfare (No. 2) Act, 1995, ensured that the provisions of the social welfare code will apply equally to those in need, whether their status is deserted, separated or divorced. Simply put, an individual will not lose out on their social welfare entitlements — such as deserted wife's payments, widow's pension, etc. — just because they divorce. The fact that a former, as well as a current spouse, could qualify for a contributory widow's or old age pension has been mocked as a form of social welfare polygamy. The concept of secure provision is not mocked, I can assure Members, by the vulnerable people, mostly women, who will benefit from it.
In recent weeks the anti-divorce lobby has predictably tried to scaremonger about the costs of divorce. Wild, untrue claims have been made that divorce will result in an additional social welfare bill costing hundreds of millions of pounds. There has also been a rather more subtle effort to associate the costs arising from the introduction of divorce with the estimated cost of completely eliminating poverty from Irish society, as though they were one and the same thing. My own views, as to the adequacy or otherwise of all social welfare payments, have been torn out of context in an attempt to equate the cost of eliminating poverty with the cost of providing social welfare guarantees for divorced people.
Let me repeat clearly that the estimated cost of implementing the Social Welfare (No. 2) Act, 1995, which guarantees social welfare entitlements for divorced people, based on 1991 figures, will reach £1 million in the fifth year of implementation and £2 million in the tenth year. Members might ask why the figure seems so low. The answer is that the Department of Social Welfare has been supporting families and dealing, for many years, with the reality of marriage breakdown. The reality is that this State supports families to the tune of 30 per cent of the £4,000 million we are spending this year. These are families of all types: settled, unmarried and separated. We already have marriage breakdown and we are dealing with its consequences. People's real needs, rather than their legal status, determine social welfare support.
With regard to the conditions for divorce, I believe we have struck the right balance between ensuring that reasonable grounds are established and avoiding the risk of treating it as a mere formality. I am particularly satisfied that we settled on the term "living apart" rather than "separation" as the precedents generally suggest that the courts will understand that a couple can and do live apart under the same roof. It would be reprehensible if there was a de facto means test to secure a divorce. I am also pleased that the four out of five year formula will not penalise a couple who attempt reconciliation.
During her contribution yesterday, Deputy Keogh stated that she felt it inappropriate to insert these conditions into the Constitution and likened the process to using an articulated truck to deliver a letter. I believe that if there is no other way to deliver the letter, it should be delivered by an articulated truck.
There has been a degree of speculation as to the likely divorce rate in Ireland. We simply do not know what it might be. Common sense suggests it would be closer to the rate in southern European countries, such as Italy and Portugal, than the British or US rate. The relatively low rate of divorce in Northern Ireland also seems a good indicator. However, whatever the rate of divorce, it will simply be a reflection of the rate of marriage breakdown with which we deal now and will have to deal with in the future. The question of what the rate might be is, to a significant extent, of little importance. It will simply reflect marriage breakdown and nothing else. The Government is not dealing with the issue of divorce in isolation. There has been a great deal of progress on family law issues generally and on such matters as addressing the causes and consequences of violence against women.
We live in a society which is engaged in rapid transition. The kind of social changes we have witnessed over the past 20 years took place in most western European societies over an earlier, but similar, period of time. Fewer people are marrying. Those who marry do so at a later age and the birth rate outside marriage stands at 20 per cent and shows no signs of levelling off. The only parallels in Europe for the dramatic nature of these changes are Spain and Portugal when those countries emerged from dictatorship. Perhaps we are finally emerging from a dictatorship of the spirit ourselves.
I realise that the rapidity and scale of these societal changes have left some people perplexed and worried but, once again, the answer is not to ignore them but to try to come to terms with them. They are after all a reflection of the free choices being made by a free people. The fact that we are no longer a monolithic society has been recognised in some areas of Government policy — for example, the social welfare code and family law — more than others but it is clear that we need to re-examine our approach to families in the changed and changing socio-economic context with a view to developing an integrated policy which would facilitate all families, marital and non-marital, in carrying out their very important functions of supporting and developing their individual members and looking after the particular needs of children and the elderly.
To that end the Government is setting up a commission on the family which will analyse those socio-economic needs and priorities and bring forward recommendations as to how those needs and priorities should be addressed. My intention is to set up that commission with effect from next week.
The most dishonest argument made by the anti-divorce lobby is that support for the principle of divorce can somehow be equated with being anti-child. Nothing could be further from the truth. Over the past ten years the whole thrust of family law and social welfare policy has been to protect the most vulnerable people in our society, children and dependent spouses. While it is incontestable that children are often victims in cases of marriage breakdown, just as they are victims of marriages in conflict and victims of poverty and domestic violence, the causes of each marriage breakdown are complex and incremental. It is a complete distortion to imply that all marriage breakdown is due to the fecklessness of both parties and it is unfair and unhelpful to try and load men and women caught in situations of breakdown with guilt as if they had failed their children. I am convinced that before breakdown takes place most of the people concerned have worked hard at maintaining their marriage for the sake of their children, as well as for their own sakes.
That said, I think we have to recognise clearly that children do have rights and needs in the context of marriage breakdown. It is very important that the courts in their consideration of each divorce application, should have regard to the well-being and rights of any children involved. That is why that particular need is incorporated in the constitutional change we are proposing which adequately deals with the reservation raised by Deputy Haughey regarding the needs of children. It is obviously easier to say that children's needs must be addressed than to do it. The desire of most children in cases of marriage breakdown to maintain contact with both parents is not always reciprocated. However, it does seem, from research, to be the case that the less antagonistic the separation and divorce, the less traumatic it is for children concerned. That is a lesson we must all take on board. In dealing with marriage breakdown we are all — whether individuals, judges or politicians — on a learning curve.
The one clear aspect is that the issue must be addressed with honesty and compassion. I believe the proposed referendum wording and the parallel Family Law (Divorce) Bill does this and I urge people to vote for them.
I am confident that the people recognise the painful human dilemma that marriage breakdown is for tens of thousands of people and will exercise their compassion in allowing them to resolve that dilemma by passing this referendum. For, at the end of the day, when we have exhausted all the stony-faced theological nit-picking and all the political debate, this issue is about compassion. It is about recognising that some marriages do break down irrevocably with painful consequences and that the men, women and children caught in those circumstances deserve our understanding and our help.
