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Dáil Éireann debate -
Tuesday, 3 Oct 1995

Vol. 456 No. 3

Private Members' Business. - 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.
Atógadh 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:
"Dail 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).

Deputy Flood was in possession and has 16 minutes remaining.

With your permission, I wish to give the remainder of my time to Deputy Ellis.

I am sure that is in order and agreed.

I welcome the opportunity to make a brief contribution to this Bill for which I do not see much need. Any perusal of statistics on the breakdown of marriage would lead one to the conclusion that it constitutes a serious problem but not of the magnitude some people are endeavouring to portray. According to a 1993 labour force survey 58,000 of the approximate 1,600,000 people of our married population were separated. Those figures illustrate that the rate of marriage breakdown here is between 3 per cent and 4 per cent, the worst statistics showing the percentage at approximately 4 per cent.

We must ascertain the general effect marriage breakdown and divorce would have on our population, in particular, the consequences of divorce on children. We are aware of the problems and trauma to which they are subjected in the event of marriage breakdown. Therefore, the additional consequences of divorce following on the break up of marriage would not be in the best interests of children or of a stable future for them. We are all aware of the trauma for children occasioned by the loss of a parent through natural causes, but the loss of a parent through divorce tends to totally divide families.

We must also examine the financial problems caused by the loss of a parent through divorce. Nobody has yet been able to quantify the additional costs to the State of the introduction of divorce. A figure of £500 million per annum has been mentioned which would appear to be fairly accurate if we take into account the cost in jurisdictions which permit divorce. This means that if every marriage breakdown were to be addressed each would cost the State approximately £800,000 per annum, which figure undoubtedly would continue to rise.

We must examine carefully the consequences of divorce for children and their well-being. While many legislative changes have been introduced since the previous referendum on divorce, insufficient work has been undertaken to afford those affected full protection, for example, to allow spouses who may not wish to be divorced but who, because of the wording of the proposed referendum, may become involved in a no-fault divorce after four years.

Anybody who contends that the present proposals amount to anything other than no-fault divorce after four years separation is merely leading the electorate up a blind alley.

Anybody who has spoken to those involved in the break up of a marriage will fully understand that it is an established fact that most of those involved do not wish to remarry, and will make that point clearly to anybody who wishes to discuss the matter with them.

Any examination of present family trends will lead one to the conclusion that the stability of families will be threatened if divorce is introduced here. Members will be aware of instances where, if divorce were to be freely available after a separation of four years, such families would already have broken up whereas, under present legislative provisions, such marriages are capable of being sustained once their initial problems are overcome.

Bearing in mind the average duration of marriages ending in divorce is approximately seven years in the United Kingdom, approximately six in Canada and lower in the United States of America, the perceived likelihood that marriage will end in divorce renders prospective spouses somewhat wary of how much they should invest in the union. That will constitute a very serious question when it comes to considering whether to vote in favour of the introduction of divorce here. Many spouses will want to ascertain how their present marital status and-or entitlements are protected within the present legislative regime of judicial separation and so on. They will want to ascertain whether they would be more secure under the legisative provisions obtaining or, in contrast, perhaps four years hence become involved in no-fault divorce proceedings.

The electorate should be enlightened fully prior to voting in the referendum.

While I have no hesitation in supporting putting this constitutional amendment to the electorate, when it comes to voting, I will vote "no" in the belief that we are not in a position to deal with the consequences of the introduction of divorce here. Its effects generally, especially on children, spouses and their property rights, are not something with which I could live.

The time is not right for the introduction of divorce and our legislation is sufficient to deal with the problem. Divorce will merely add fuel to existing problems.

I wish to share my time with Deputy Eamon Walsh.

I am sure that is in order and agreed.

It would be proper for people to reflect on the debate held approximately 15 years ago on contraception. At this stage we should ask ourselves the question — when we recollect the fuss and bother that arose in the course of that debate, with people appealing to their consciences and that of the nation, an Irish solution to an Irish problem — what it was all about. Yet, would anybody now dream of endeavouring to reintroduce the provisions of the Criminal Law (Amendment) Act, 1935 on contraception? Of course they would not; they would be laughed out of court. It is right to reflect on that, put it in perspective and, perhaps, think ahead 15 years. I predict that in 15 years' time people will ask what all the fuss was about. They will look back on this debate in the same way we now look back on the debate on contraception.

We are the only European country without divorce or the right to remarry. Are we so special; have we something unique that should place us in that position? The late Eamon de Valera inserted the ban in the 1937 Constitution although it was not included in the Constitution adopted on the foundation of the State. It would have been better if it had not been included in the Constitution, when it would be a matter for this House to decide whether to introduce divorce here.

We shall hear much in coming weeks of the phrase, "what God has joined together let no man pull asunder". I believe in that phrase but I do not believe that divorce, as we know it, or the prospect of remarriage is what pulls people asunder. We do not have divorce here, we have 75,000 separated people, not caused by divorce but by marriage breakdown, by the fact that they could not live together.

It is no harm to look at the definition of divorce. Divorce means to sever, separate, detach or put away. It does not, strictly speaking, give people the right to remarry. If I look back to the days of my legal studies——

That is too far back.

——and search the distant recesses of my mind, I recollect that divorce a mensa et thoro, which was divorce from bed and board, existed. To misquote Shakespeare, he wrote in Henry IV: “...get thee Henry from my bed and board...”, and that referred to divorce a mensa et thoro. We are talking about a different kind of divorce — divorce a vinculo, which is divorce with the right to remarry. I raise this point on the basis that it is the separation from bed and board which is the divorce, not the right to remarry.

With regard to providing for the right to remarry, I believe it is unchristian for me to deny the more than 75,000 people affected by marital breakdown the right to seek happiness in a second marriage. I do not say others are unchristian; everybody has to form their own view. However, that is my personal reaction to this proposal. Divorce with the right to remarry is a civil right. I would regard it as selfish of me to deny that civil right to anybody and I do not have the right to do so.

On an individual basis I see no answer to the case made to give the right to remarry to those unfortunate people whose marriages have broken down, in particular, those who may be broken and battered from monstrous situations in those marriages. They are entitled to seek happiness in a new and stable relationship.

There is a broader issue to be addressed on which I would not be as clear cut. I do not know whether there will be a greater incidence of marital breakdown because of the introduction of the right to remarry. In 1986 I remember a prophecy from those who opposed the amendment that marital breakdown would double in ten years if the right to remarry was introduced. That right was not introduced, yet in less than ten years marital breakdown has doubled. Nobody can resolve this question and I accept it is a matter on which there can be different valid views. The case is clearly made for me, however, on the basis of the individual; that is, the right of the individual to seek happiness in a new marriage.

I am concerned about the reaction in Northern Ireland if this amendment is defeated. We should have a modern pluralist society. For some people in Northern Ireland the image that "home rule is Rome rule" still lingers. Whatever justification there may have been in the past for that view there is none now. However, the perception is there.

I was in Armagh yesterday at a prayer breakfast and after it I met the members of the Independent Loyal Orange Institution who were protesting. They were not protesting about my being there; they were protesting about the presence of the Rev. Martin Smyth MP, not because he sat down to breakfast with me and 300 others but because some prayers were said before and after the breakfast. They regarded that as absolutely out of order for him. They believe, and I quote their newsletter, that he was duty bound to: "strenuously oppose the fatal errors and doctrines of the church of Rome, and scrupulously avoid countenancing (by his presence or otherwise) any act or ceremony of Popish worship." It is easy to laugh at that but they genuinely believe it.

This is an aspect which cannot be overlooked in this debate. In article 6 of the Downing Street Declaration the Taoiseach is committed to examine with his colleagues "any elements in the democratic life and organisation of the Irish State ... that can be represented as not being fully consistent with a modern democratic and pluralist society ... and undertakes to examine any possible ways of removing such obstacles." That does not relate only to divorce but divorce with the right to remarry is a normal civil right in a modern pluralist democratic state. If it is rejected it will be seen as contrary to the spirit of the Downing Street Declaration. It will add fuel to the fire of those who have the perception that we are still ruled by Rome.

I come from a constituency which decisively rejected the last amendment on divorce. However, I will vote for this Bill. I will campaign for the amendment in my constituency and hope I can change minds on this occasion.

There is a question as to whether these changes should be written in the Constitution. I have a lot of sympathy with the view that they should not. The matter should never have been in the Constitution from the outset. I would prefer not to see these changes written into the Constitution because I am a believer in parliamentary democracy. I do not believe in pandering to those who say they do not trust politicians. If we do not trust ourselves how can we expect others to trust us?

I have sympathy for that view but I accept that politics is the art of the possible. The greater good is for the amendment to be passed and if it is easier to do that by having the changes written into the Constitution then I accept that. I also have sympathy with the view that the four year period is too long. I would have preferred three years but it is not a point of principle for me. If that is the view adopted as being best overall I accept it.

It is important to have a calm reasoned debate on this issue so that emotions are not raised as they were the last time. We must listen to the points of view of others, respect them and let the people decide.

Deputy Jim O'Keeffe spoke about the question of what is meant by divorce. There is a misunderstanding about the term "divorce" which needs to be cleared up. At present, marriages can be dissolved by the legal separation of people so they may live their lives separately. We have a constitutional prohibition which prevents remarriage. That is only one element of a divorce process available in many other countries. Many people think we are introducing divorce and do not understand the element which is to be put to them, namely the right to remarry.

This right is a commitment given in the Programme for Government and is a core principle of the Labour Party. It will address the difficulties of over 75,000 people whose marriages have broken down and who have no right to remarry and restructure their lives. There is a lack of compassion in that regard and the proposed amendment will allow them to have some redress.

It is almost ten years since the last referendum and we must analyse what happened in 1986 to ensure we do not fall into the same traps in 1995. The campaign at that time centred mainly on property and social welfare issues. Some political parties adopted an indifferent attitude to the issue and this caused difficulties for some people who did not know how to vote without guidance from their parties. The Catholic Church actively campaigned for a "no" vote; I do not know what it will do this time. Further, the Government position was not clearly thought out, so there was much confusion in 1986.

What is the difference this time? The property and social welfare issues have been addressed by legislation; many say they have been adequately tackled but there is always room for improvement. However, most of the serious elements which arose in the 1986 campaign have been addressed in the social legislation passed by this House.

Counselling and mediation services have received substantial funding increases. This is a riposte to critics who say that the referendum will destabilise marriages. Counselling and mediation services are a valuable asset. In many cases where people genuinely wish to continue together, it is a means to ensure they have that opportunity.

The courts deal with separation on a daily basis, in accordance with new legislation. People are separated through a judicial process, which has been accepted as a legitimate way to resolve difficult marriages. All a "yes" vote will ensure is the right to remarry — that is the only issue left to be redressed.

People should be aware of the new social welfare and property rights provisions and an information campaign is required to that end. The Social Welfare (No. 2) Act, 1995 ensures divorced people will not lose out on any social welfare entitlement. This information should be made clear to people. This Act provides for entitlement to widow's or widower's pensions and widow's noncontributory pensions and the retention of the entitlement to deserted wife's benefit and allowances. Divorced parents are recognised for the purpose of lone parent's allowance. Family income supplement can be provided to divorced spouses as adult dependants.

The Judicial Separation and Family Law Reform Act provides that the court can order the distribution of the family home, farm and other assets. Property used by either husband or wife for his or her business or professional purposes cannot be interfered with by the courts but they can decide to protect or extinguish the right to inheritance.

The protection of the family is probably the most important aspect of this matter. In 1995, £750,000 has been provided for marriage and counselling organisations; £300,000 has been provided for the family mediation service, whose Limerick office has expanded; and the Legal Aid Board has received a budget increase of up to £6.2 million, which is 132 per cent more than the 1992 figure. These are important elements of the infrastructure required to deal with marriage breakdown. The board has doubled its staff and has eight new offices with six more on the way. The minimum age for marriage has been raised to 18 years, with a three month waiting period for people who wish to marry. These are further safeguards to ensure people do not marry hastily.

The Judicial Separation and Family Law Reform Act has not been adequately explained to the public. Many people think we are only introducing it now. It is already available and working, although whether it is satisfactory remains to be seen. Many people are using it and it seems to work but in the future we may have to adjust or fine tune it.

The Act provides that the court can make an order acknowledging that a marriage has irretrievably broken down and ordering the parties to live apart permanently. Orders can also be made on maintenance for either spouse, whether by lump sum or regular payments; maintenance, lump sums and property for any children; the right to live in the family home; the right to transfer property to either spouse; and custody and/or access to any children. The courts can grant a separation if there is unreasonable behaviour; adultery; desertion for one year or more; or no normal marriage relationship for one year or more. If a couple has been living apart for three years or more, or, if they have agreed to a separation for one year, they can be considered for a judicial separation.

Many people want to know the main provisions of the Family Law Act, another provision to help people deal with marriage breakdown. The improved measures to enforce maintenance payments include deductions at source. The courts are allowed to divide pension entitlements between spouses. Divorced couples will be treated similarly to married couples for tax purposes and succession rights are protected.

A substantial portion of the infrastructure required to deal with marriage breakdown is now in place. These elements are working and people are becoming aware of them. The issue which remains is what happens to people who have been through that process. Must they remain as they are for the rest of their lives and will we turn a blind eye to any future relationships, as if nothing happened? Each person must decide on the right to remarry. Some people think we are forcing people to remarry in introducing this legislation but it simply allows them to decide whether they wish to do so.

Another concern is that a divorce culture will result in the breakdown of marriage — people draw this conclusion from what they see as evidence from elsewhere. They should look to the position in Ireland, specifically in dioceses which straddle the Border. In one part of the diocese there is a right to remarry and in the other there is no such right. No one could say marriages are destabilised in the Northern Ireland portion of the diocese. Many people in those areas live and behave in accordance with their beliefs. They remain together if they can; if their marriages break down they separate and if they believe they should not remarry they do not. We should analyse conditions for Irish people living on our island. We should look at how divorce has affected people in Northern Ireland. Nothing unusual has happened there. They have a right to remarry and this is satisfactory for those who wish to do so. Those who do not wish to remarry have the right to decide that.

Divorce already exists in Ireland. As I understand it, divorce means the breakdown of marriage, the separation of the two parties and the arrangement arising from that. We are asking the Irish people to decide if the constitutional ban should be removed and if people should be allowed to remarry. That is the simple question we must answer.

I wish to share my time with Deputy Martin.

I am sure that is satisfactory and agreed.

I accept there are differing deeply and conscientiously held views on both sides of the divorce debate. We wish to protect the family, the hallmark of Irish society and the fundamental unit around which it is built. The marriage commitment in this country is considered a permanent contract. However, the phenomenal social change which has taken place cannot be ignored. The incidence of marital breakdown in our society has continued to grow, despite the constitutional ban on divorce. New families are growing up in a legal limbo. For happy families, the emphasis on traditional family values should never be such as to make those who have not been so lucky feel guilty or ashamed. Each of us nurtures ideals of the kind of world we would like to live in and the way we would like to live our lives. However, the circumstances of life often get in the way.

There is a wide difference of opinion between churches on the issue of divorce. These differences, however, do not reflect any shift from the stoutly held view that the family is a fundamental unit of society and that successful marriages require positive support from the Government. Nor do these differences reflect any diminution to the commitment necessary for couples to make marriage work. In an ideal world, marriages would not break down.

There is no evidence to show a higher incidence of marriage breakdown in the North, where there is no ban on divorce, than here in the South. This may be accounted for by the fact that strong family values are shared by the Presbyterian and Anglican communities, as well as the Catholic community in the North. One day, we hope to sit down and work out a lasting and peaceful settlement to the Northern question. All sides have promised to be generous. It is scarcely likely that in that settlement we will have a constitutional ban on divorce in the South and a totally different situation in the North.

I do not believe that the Catholic Church requires a constitutional ban on divorce to sustain its belief and teaching that divorce is wrong. I do not believe that a Catholic living in the archdiocese of Armagh is any less a Catholic because he or she lives in a different jurisdiction than somebody living in the diocese of Killaloe or the archdiocese of Cashel. The Catholic hierarchy must continue to advise its flock. However, the State must provide laws which accommodate differing religious and social viewpoints.

There has been a significant decrease in the number of marriages in Ireland, together with a significant reduction in the number of children born to each marriage. One out of five children is born out of wedlock. Meanwhile, the number of legal separations is growing rapidly and barring orders have become a constant feature of modern life. The argument that the continuation of a constitutional ban on divorce could halt or prevent these social developments is unreasonable, unfounded and unsustainable.

More and more resources have been made available and yet more are required to develop mediation and counselling services. These provisions would help many couples where a marriage is in difficulty to restore faith in each other, work their problems through and, above all, take into account the needs of their children. Notwithstanding the best of counselling and mediation, marriages have broken down irretrievably in the past and will continue to do so.

The proposals by the Government require couples to be living apart for four of the previous five years before a court may dissolve a marriage. Where a marriage is dead and separated people enter into a new and happy relationship, I am unable to vote against giving them this second chance and allowing them the right to have their relationship legally recognised. In all areas of life, people who have made mistakes yearn not to repeat them. To be truly tolerant and compassionate, a person who enjoys a happy marriage would not wish less to their neighbour.

"Divorce Irish style" is a phrase often used in a derogatory way to infer that marital breakdown exists in Ireland and people deal with it, with or without a ban on divorce. I would like to use it in a literal context. We are not going to slavishly follow the way other countries implement divorce. We will not have "quickie" divorces. Only the people will decide how we, as a nation, implement divorce and whether, if the referendum is passed, we would ever wish to change the terms.

I do not believe that anyone in a happy marriage, or those who run into the difficulties many marriages face such as problems with children — sometimes drug or crime related — financial difficulties, health problems and all the other challenges we face in our daily lives, will easily turn their backs on the marriage commitment and willingly face into the legal problems and torment associated with marital breakdown. Working and living in my constituency, I have heard many harrowing stories in my clinics and in people's homes of problems relating to marital breakdown. I do not feel that I have the right to deprive someone who has gone through that torture of the chance of a better life, a second chance to find happiness.

I know there are people who will walk out of marriage without a just reason, leaving a good partner stranded. They are doing this when the right to remarry is prohibited under our Constitution and I have no reason to believe that it will not happen if the prohibition is removed. I also know of people who stay locked into marriages where sexual and psychological abuse, beating, deprivation and other cruelties which no human being should have to live with are a way of life.

As a public representative and TD for North Tipperary, I believe that I have a daunting responsibility. Many Fianna Fáil supporters in my constituency are totally against divorce and the removal of the ban, and I respect their views. In the final analysis, however, a constitutional referendum is a matter for the people only. Successive Fianna Fáil Governments have put in place in recent years a battery of legal reforms to pave the way for this referendum. I believe fundamentally in the separation of church and State and, above all, in the right of minorities in a republic. For these reasons, I will be voting "yes".

I appreciate the opportunity to contribute to this debate and I consider the contributions made by many Members to be honest and genuine. Our party has endeavoured to put forward a very honest manifestation of the different viewpoints within our parliamentary party on this subject. People throughout the country have different views on it. I share the view of my colleagues, Deputy Michael Smith and Deputy Jim O'Keeffe, that as a legislator I do not have the right to deny people the right to remarry.

I also doubt the argument which has been put forward that if we insert the right to remarry into the Constitution there will be an avalanche of divorce cases and separations and that people will easily take the divorce road. Divorce is not an easy option for anybody. Couples getting married do not look ahead to separation.

Increasingly, many of the social problems brought to my advice centres originate in disharmony in the home and the separation process. It is heartrending to meet separated fathers coming from dingy, damp, dilapidated inner city flats, having previously been in a fairly stable home. They find themselves in these situations because of marital breakdown. They look for local authority housing because they want somewhere decent to live where their children can visit them and so on.

I also see increasing numbers of mothers in my advice centres since the Judicial Separation and Family Law Reform Act. I am not a legal expert, but I am unhappy about some of the arrangements made in terms of the material and financial provisions for dependants, particularly children. I had a number of cases recently of women who have received judgments from the courts to the effect that they may stay in the family home until the children reach the age of 18 years, for example. There is a consequent worry about the educational possibilities for those children as they may wish to go on to third level. Many young people are now dependent up to the age of 21 or 22 years.

This Bill and the passage of the referendum, if successful, represent a huge challenge to us as a legislative body. It does so in so far as we have to quickly develop strong demediation and counselling infrastructure within the State. We must also ensure and improve the economic and material provision for children and spouses without income.

I am especially anxious that we develop the mediation and counselling dimension of this issue. Historically as a country we lack a counselling culture. For example, in our education system the psychological service is at an embryonic stage and is very under provided for. Often if parents approach one over difficulties with their children and one suggests that they see a counsellor there is a reluctance to do so, a certain loss of pride that one would have to do this. However, it is a natural thing; counselling is good for people. We need to pay more than just lip service to the concept of counselling and to the infrastructure available to people generally.

I pay tribute to our party spokesperson on Equality and Law Reform, Deputy Woods, who has made a constructive contribution to this debate through our party's position paper on the right to remarriage and on a subsequent research paper on the impact of separation and divorce on children. The research he drew together in this document is very useful for people to enable them to assess the impact on children. Coming from the education sphere, I am extremely concerned about this dimension.

What is clear from the research is that the negative impact on children is over a number of years or part of a process and develops in stages. The fundamental and principal difficulty is the act of separation itself or the disharmony that preceded separation and was its cause. Disharmony and hostility between parents will damage children psychologically and impair them. They will have the capacity to recover if the proper counselling is provided and, more importantly, if proper, consistent, stable parenting is maintained after the separation. In this respect, the importance of parenting, both pre and post divorce is critical if we are to help children and intervene in their developmental stage to ensure that the harmful impact of separation and divorce is minimised to the greatest degree possible.

The financial and material dimension is equally important because financial loss and material deprivation will also have a negative impact on children and could retard their development in future years. I am strongly supportive, therefore, of the emphasis our spokesperson has put on the situation regarding children. It represents a challenge, not just because after the referendum one would have divorce. It should be a challenge now and it should have been a challenge a number of years ago.

It is regrettable that we have not developed proper services for children generally. In this respect I welcome the proposal in our document that a Commissioner for Children should be appointed, attached to the courts, to represent children and to exclusively look after their rights in these situations.

The stability of parenting is a critical issue. It is equally clear that there is no one solution to the problem after divorce. There is no evidence to suggest that one specific form of custody arrangement is better than another. In America joint custody is perhaps gaining in popularity. It is an area we should study more and follow up.

The argument has been put forward that the post divorce period is the most detrimental stage on a child's development. Interestingly, the research indicates that this is not the case. It is from the moment disharmony begins and hostility develops between the parents that the harmful impact is made on the child. As one goes up the scale divorce adds a further level of harm or damage to children. However, also interestingly, with proper counselling and a proper support structure, children can recover and move on. This is useful and hopeful. It is vitally important that we develop this aspect.

I am not won over by the argument that we have to proceed with this matter because of Northern Ireland. We must proceed for ourselves as a society. I recently spoke to loyalist politicians from the Shankill and to Unionist politicians. They courteously but firmly told me that it did not concern them what way we voted in this referendum; it was a matter for ourselves. We should vote for this measure, and the people should vote for it to enable those in second relationships to have those relationships acknowledged by the State and accommodated legally, with their children.

We should insert the terms into the Constitution. If we consider ourselves a reasonable barometer of public opinion, it is clear that people generally were worried by the prospect of what is termed "quickie divorces" or the "quickie divorce culture" in any legislation of this kind or in any referendum. The mechanism of inserting the terms into the Constitution is a response to this opinion, which was substantial and won popular support throughout the country. People had a vision of divorce in other countries. It may have been a wrong vision. Perhaps too many people are looking at too many programmes such as "Dallas" or emanating from Hollywood and so on and see the kind of divorce depicted on them as an image. However, we all know from our own work that separation is not an easy option.

Deputy Jim O'Keeffe believes in the concept of parliamentary democracy over the popular will. This argument could be extended across the board. We have a written Constitution. Do we need it? Should we dissolve it? I do not believe so because it is the fundamental guarantor of the people's rights. It has been made clear to all of us that this is an issue which is fundamental to the public. Ten years ago the people made their views clear in the way they voted. It is not that people do not trust their parliamentary representatives. The fact that we have a written Constitution in itself is saying that we as a society wish to put a limitation on the legislature. We wish to reserve for ourselves the right to arbitrate on certain issues. This is something in which I strongly believe. The Constitution today is not the Constitution de Valera framed in 1937.

I support the passage of the Bill and will support the referendum for the right to remarry. I have laid strong emphasis on the need for the State and society to develop a comprehensive infrastructure for counselling and mediation. This Bill and opportunity represent a huge challenge for us to do something meaningful in the years ahead for children in this society.

I have listened to much of the debate and no one has put forward a cogent argument which would justify the inclusion of the proposed wording in the Constitution. It is evident that two debates are taking place in the House, one on an amendment to the Constitution which would allow people to remarry — I support this proposal — and the other on our amendment in which we disagree with the formula of wording chosen by the Government to remove the prohibition on divorce.

I speak as an individual legislator and as my party spokesperson on human rights. This debate is about championing a minority right to remarry, which is essentially a human right. When dealing with issues of justice and human rights we may deal with issues of injustice and the focus is very often on a flawed criminal justice system where battered women and refugees are not properly looked after and minority rights are not championed. That is part of the territory with which I deal as my party spokesperson on justice. As legislators, we are constantly challenged in our efforts to align our modern laws with a staitjacket document drawn up in the 1930s which by and large represents a style of thinking and set of moral values which had great support at that time. We often find it difficult to make our laws fit into the mores of the 1930s.

No cogent argument has been put forward for using the Constitution as a skirt behind which to hide and run from the people. We should be much more self-confident about our role as legislators and should give leadership on this issue rather than following the dreadful precedent set in 1993, of stuffing provisions into the Constitution to insure ourselves against possible future change.

One of the arguments put forward by a person who supports the inclusion of these 14 lines in the Constitution is that the people have a special relationship with their Constitution. This is a load of rubbish, yet it was used as part of the argument for including the terms of divorce and remarriage in the Constitution, a sort of comforter to the electorate. I wonder how many people have seen the Constitution. If one did a survey of homes one would be more likely to find a copy of the "Guinness Book of Records" than a copy of "Bunreacht na hÉireann". I did not hear of this document until I was studying law in Trinity, and law students are a particularly rarefied breed of young person.

It is worth looking at what a Constitution is and what it is supposed to be. The Progressive Democrats believe the Constitution should set out in broad brush the fundamental laws of the State, including guarantees on fundamental human rights and freedoms and the basic structure of State institutions. Moreover, it should command the allegiance of all the people and should not include terms which pander to sectarian interests. The Constitution pandered to sectarian interests from the beginning and we are still pandering to them by seeking to amend the Constitution by inserting another fearful clause into it.

The Constitution is a small blue coloured document of 160 pages. It is not only a legal document but is very much a political document drawn up in 1937 by Mr. de Valera and others. The constitutional lawyer David Gwynn Morgan calls it one of the symbols, like the national flag or anthem, through which a polity proclaims to itself and outsiders "this is who we are". It is a focus of loyalty and a statement of national beliefs, ideals and aspirations written as much for the lay person as it is for the lawyer. History has revealed that there were many different stages and influences involved in drafting the Constitution in 1937 which resulted in a mishmash of sometimes conflicting provisions which are often couched in hopelessly far fetched and elaborate aspirational language. Deputy O'Malley referred to the use of the capital letter "F" each time reference is made to the family which is not a proper noun. It is worth nothing that because the Constitution is such a political, part legal and part religious document it does not lend itself to the rules which normally apply to statutory interpretation by the courts, which is a literal and predictable formula of interpretation. A huge degree of creativity attaches to interpreting constitutional provisions so that simple phrases or words take on a different meaning when they are read as they must be — judges are obliged to do this — in the light of the Constitution as a whole. This includes the preamble to the Constitution which states:

In the Name of the Most Holy Trinity, from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred,

We, the people of Éire,

Humbly acknowledging all our obligations to our Divine Lord, Jesus Christ, Who sustained our fathers through centuries of trial,

Gratefully remembering their heroic and unremitting struggle to regain the rightful independence of our Nation,

And seeking to promote the common good, with due observance of Prudence, Justice and Charity, so that the dignity and freedom of the individual may be assured, true social order attained, the unity of our country restored, and concord established with other nations,

Do hereby adopt, enact, and give to ourselves this Constitution.

The Constitution which is supposedly a statement of who we were and are has been described by constitutional analysts as attempting to reconcile the notion of inalienable popular sovereignty with the old medieval concept of a theocratic state: in other words it is a blend of revolutionary declarations and 1930s religion.

Having set the tone of the Constitution with the wording in the preamble, which basically translates as "free at last" with the words "but not from Rome" in brackets, the draftsman made a confident assertion of the national territory and sovereignty thereof as follows: "The national territory consists of the whole island of Ireland, its islands and territorial seas". That statement was not a political reality then and it has not yet been one at any time since then. Nevertheless it is included in the Constitution, a part of what we are.

In the context of divorce, Articles 40 to 44 of the Constitution deal with the fundamental rights of the individual, the family, education, private property and religion. The Constitution is heavily dominated by Roman Catholicism. These Articles, one of which the Government Bill seeks to delete and replace, owe much to the encyclicals of Pope Pius XI and even beyond that to the synthesis of Catholic social principles published in 1927 and known as the Social Code. In the 1930s there was an ideal in Europe based on Kinder, Kuchen, Kirche and this was very much replicated in our Constitution.

Not many people are aware that the Constitution was put to the people in a referendum in 1937 and it is interesting to note the result. A total of 685,105 citizens voted for adopting the Constitution, 526,945 voted against it and 31 per cent of those entitled to vote did not bother to do so — nothing much has changed in that regard. As Deputy O'Malley outlined, that narrowly adopted document has been examined on several occasions with a view to amending it. Mr. Lemass examined it in 1966 and set up a committee to consider changing it and over the years there have been other political attempts to change it. The Government has set up a special committee to consider reviewing aspects of it. The hope of reconciliation in Northern Ireland is a continuous political motivation for examining the Constitution with a view to reforming it.

Shortly after the Progressive Democrats Party was formed it published a draft Constitution which sought to express and vindicate rights and obligations of fundamental importance and to do so in a manner which would stand the test of time in a pluralist, democratic republic in part or all of this island. However, because of the absence of a Christian God in that draft it created something of a stir.

Over the past 20 years Members will recall we have had agonisingly complicated battles on matters of sexual morality and individual freedoms, sometimes because of the difficulty in aligning laws reflecting the changing views and needs of Irish people, such as the need for the right to remarry, to the strait-jacket of the Constitution which is full of very specific, outdated and sectarian provisions. There have been many victories for individual rights resulting from a creative interpretation by individual judges based on unenumerated rights.

Over the years we have seen compassionate judges doing their best for people based on the human circumstances of the cases before them. In that way a body of constitutional law has evolved which is necessarily judge-made. Decisions have been handed down on the right to die, the right to life, on the appalling X case from which this House is still fleeing. Legislation has not been introduced on the substantive issue — another flight from our responsibility. All we have had the nerve to do is to legislate for the hypocrisy of exporting our very high abortion figures to the United Kingdom. We were harshly criticised by the late Mr. Justice McCarthy in the X case for our failure which he described as inexcusable to leave bare of legislative direction the right to life amendment in the Constitution and that still remains the case.

Whatever about the difficulties of aligning our modern laws with the provisions in the 1937 Constitution, experience should have taught us that we should not be inserting even more clauses into it when we could as easily legislate for what we want to achieve. I favour the formula proposed by Deputy O'Malley, a much simpler and shorter one. It provides that notwithstanding any other provision of this Constitution a court, designated by law, may grant a dissolution of marriage where it is satisfied that all of the conditions prescribed by law are complied with. As outlined by my colleagues, there is great folly in inserting the proposed 14 lines which contains ambiguous language into our Constitution when we need not follow that route. As pointed out by others, we need to learn a lesson from the difficulties caused by inserting the unnecessary pro-life clause into the Constitution in 1983. Who could have thought that such an assertion of the right to life of the foetus could have the horrific outcome of the circumstances of the X case?

An action taken by the then Attorney General on behalf of the people to protect the constitutional right to life of an unborn child ended up after two years of legal wrangling in doing great injustice to the constitutional rights of the born child, the mother, a 14 year old school girl pregnant by child abuse. It was only by the creativity of the judges in hanging their decisions on the three words in the preamble to the Constitution, "Justice, Charity and Prudence" that they found they could release that child from a State injunction to force her to go full term in an unwanted pregnancy. By inserting the equal right of the unborn into the Constitution, the X case demonstrated that we had unleashed a potential tyranny of internment on all women who found themselves pregnant and needing an abortion.

The lessons have not been learned. Rather than constantly amending our Constitution, we need a new one. The only solution is to replace the Constitution with a new document which would gain the allegiance of all Irish people, made up of Christians, non-Christians, agnostics, atheists, feminists, children, homosexuals — the new Ireland. Such a document would not be based on a sectarian belief.

Over the years, alongside the battles on sexual morality in the courts relating to condoms, abortion and the usual line up of sexual-social material including adoption legitimacy and judicial separation, a parallel battle has been fought in the political and media arena. In an essay entitled, "A Morality Debate Going Nowhere", Fintan O'Toole referred to the relentlessly polarised views of the people on both sides of the conservative and liberal divide in Ireland. In many ways perhaps it is a morality debate going nowhere. No one will ever win the argument because people have such different positions.

He referred to the debate, and I believe it is a good description of it, as a perpetual Somme with both sides wading through the mud to take a few feet of ground, the air thick with impenetrable gases. On one side are the forces of good and God, their policy allegedly based on Roman Catholic values and on the other a less single minded amalgam of liberal voices raging against the control theory. Perhaps, as Mr. O'Toole speculates, the two sides are essentially irreconcilable and the regular skirmishes are pointless and sterile.

For the purposes of this debate I thought it useful in terms of history to consult the Official Report of the Seanad of 11 June 1925 when a debate raged in that House on the proposed appeal of the divorce legislation which had existed prior to the establishment of the Free State. The then Senator W.B. Yeats made a great case for the championing of minority rights. As a Protestant, he warned of the dangers of a course of action which would have the result of taking away rights to remarry which would affect all the people in the new State, including Protestants and other non-Catholics who were not part of the majority religion. What is striking in the debate is his assertive, self-confident championing of minority rights and we do not hear enough of the arguments based on minority rights. There is no point in entering the Somme battle with the liberals and conservatives on both sides because it cannot be won. The most cogent reason and argument to be made for removing the prohibition on divorce has always been and remains that of championing the rights of minorities.

Much has been said of the numbers of people wanting to remarry and those who have failed marriages. If there were only 100 people in such a predicament, this House would be obliged to allow them remarry. I regret I do not have an opportunity to read into the record everything Mr. Yeats said but I would like to quote the following: "I think it is tragic that within three years of this country gaining its independence we should be discussing a measure which a minority of this nation considers to be grossly oppressive".

When the White Paper on Marital Breakdown and the review of the proposed changes were prepared some years ago by my colleagues, it stated in the opening chapter — and this remains the view of this party — that the vast majority of people in Ireland who get married go on to live together in lifelong unions. The unfortunate reality, however, is that a minority of those who marry have their hopes and expectations of a permanent union dashed through the breakdown of their marriages. Another point made in the opening chapter was that a primary concern of the Government must be to do all it can to assist the preservation of stable marriages and the avoidance of marriage breakdown. It further stated that the Government must also endeavour to ensure that there is a proper response in our law on social policies where marriages break down.

The White Paper went on to outline what had happened in the period since 1986 and what should be done in the years immediately ahead. On that basis it also discussed various issues which arose in relation to the possibility of divorce being introduced here. It considered the various forms a constitutional amendment might take and gave details of the scheme of a family law Bill. Fianna Fáil in Government followed up on that White Paper. In 1987 we said we would try to correct the mistakes made in 1986 from the Status of Children Bill to the position where we prepared and presented a White Paper.

We continue to deal with the legislation outlined in great detail in our position document on which I congratulate our spokesperson on Equality and Law Reform, Deputy Michael Woods. In that document he outlines the legislation that has been passed, the reasons it was passed and what remains to be done. There is not any need for me to go through all of that legislation.

In various documents and position papers put before the people we clearly stated that we would complete the domestic violence Bill, the property Bill and other legislation on tax and social welfare and that we would put an amendment to the people by the end of 1994. Unfortunately, subsequent events prevented the Government of the day moving ahead with that speed.

Because we in this party completed the legislative process that should have taken place in 1986 and because of the commitments we gave to hold a referendum, we support the holding of a referendum on divorce and the right to remarry, in addition to writing into the Constitution some essential details of the amendment to be put to the people.

In the ten years since the last referendum on divorce two referenda have been held on European integration. It is not unreasonable to hold a second referendum on divorce nearly ten years on, especially when one considers the circumstances in which the 1986 referendum was held. Prior to the 1986 referendum, opinion polls showed that there was approximately a two thirds majority in favour of a change in the Constitution. That was reversed during the campaign, the principal reason being that there was inadequate preparation for the referendum. In the people's view the cart was being put before the horse and answers were not forthcoming to questions raised. The necessary legislation was not prepared or put forward in coherent position papers.

In the intervening period — almost entirely under Fianna Fáil-led Governments — this large body of legislation has been put in place. Given that polls continue to show that public opinion is favourable in principle to a change in the Constitution, it is reasonable for the people to be consulted again to see whether, in today's circumstances, they now wish a change to be made.

In 1986, Fianna Fáil did not oppose the holding of a referendum and did not vote against the enabling legislation going through the Dáil. On that occasion the party was officially neutral. As the record shows, some Fianna Fáil Deputies supported divorce and more opposed it. Nine years later, most of the necessary legislation is in place dealing in detail with the rights of spouses, children and the division of property, all with the aim of protecting the rights of the existing family.

In 1992, the then Minister for Justice, Padraig Flynn, published a comprehensive paper on marital breakdown which reviewed the situation and addressed most of the arguments that have since surfaced. He also prepared the draft No. 2 Bill on family law reform in which the various arguments are well listed. I would also like to mention that the Oireachtas committees carried out a substantial amount of work from 1985 onwards in preparing the case for this debate and for the people to make their choice.

Even in the absence of divorce the number of persons whose marriages have broken down has risen from 37,000 in 1986 to 55,000 in 1991 and is now estimated to be in the region of 75,000. The White Paper also discussed the possible approaches to the constitutional amendment and gave the following commitment: "The Government proposes to proceed with a divorce referendum after a full debate on the complex issues involved and following the enactment of other legislative proposals in the area of family law". The holding of the referendum, therefore, was Government policy under the Fianna Fáil-Progressive Democrats coalition. The Fianna Fáil election manifesto of November 1992 under which all Fianna Fáil candidates sought re-election, stated that the party would hold a referendum on divorce. The Fianna Fáil-Labour Programme for Government approved by the Fianna Fáil parliamentary party in January 1993 reiterated the commitment to hold a referendum on divorce and called for "a major programme of law reform culminating in a referendum on divorce".

The national debate on divorce is one of the great debates of our time with great passions being expressed on both sides of the argument. There is enormous media interest which will increase as we move closer to polling day. A lively debate is taking place in the work-place and in public meetings on all aspects of the issue. It takes its place with the national debates on joining the European Union, the Maastricht Treaty referendum, the abortion referendum and the peace process.

In the past 20 years marital separation has become a factor in many families. The reasons for marital separation are always complex, personal and highly charged with emotion. There are serious considerations to be addressed by both persons and their families when marital breakdown occurs. A large group of separated persons lives in this jurisdiction and there is a steady rate of judicial separations. There are approximatley 75,000 separated persons and over 2,000 judicial separations are granted per year. The needs, concerns, expectations and rights of those people should be addressed in a thoughtful, compassionate way in this divorce referendum. The majority of marriages in Ireland succeed and continue to be mutually satisfactory relationships. Stable and happy family life is rightly prized as a great blessing to individuals and society. It is the safe nest from which most of us emerge as young adults to take our place in the work-force, as parents, guardians and counsellors of our children. The web of family relationships is central to our lives whether we are fortunate enough to be able to retain and sustain our personal bonding or whether we have to, regretfully concude that a relationship is at an end.

In this debate it is vitally important that we do not cast aspersions on the views of people who differ from us, that we seek to be mutually constructive, respectful and caring and that wherever possible we ensure that the real needs of people under pressure are considered.

My party discussed the issues involved in the divorce referendum. We are intent on dealing with it in a responsible and compassionate manner and we have consistently accepted that there are many views on holding a referendum. In an open and democratic way we listened to those who spoke in favour of or against a "yes" vote. Among my colleagues who did not get an opportunity to speak either within the party or outside there are serious fears about the impact of major legal changes, such as are proposed in this referendum.

We have decided to vote for the legislation, recommend a "yes" vote and let the people decide. In spite of adverse comment, we can do that effectively. The Constitution, drafted by Éamon de Valera, provides in Article 6 that the people have the right:

... in final appeal, to decide all questions of national policy, according to the requirements of the common good.

In other words, it envisages that the major issues of public policy should be referred to the people. We have an element of direct democracy in our Constitution. Having the ban on divorce in Article 41 rather than simply preventing divorce by legislation means that its introduction has to be approved by the people. We on this side of the House believe that the people wish, as a condition of introducing divorce, to retain some direct control over its character. They do not wish the introduction of "quickie" divorce as they have stated many times in opinion polls and in debate throughout the length and breadth of the country before and since 1986. They want to ensure they will be consulted about proposed changes. The requisite four year separation period provides some safeguards or deterrents against impetuous and socially damaging behaviour. I am pleased the Government has paid close attention to our views on incorporating the four year separation period into the Constitution.

Many societies wish to tighten up the divorce legislation because of the effects of too easily available divorce on family life, deserted spouses and children. We are attempting here to introduce a tighter regime than exists in many other countries. We are trying to legislate for the effects of what is likely to be a growing problem. We do not want to needlessly aggravate the incidence of marriage breakdown but if we are realistic, we must accept that it will probably continue to rise with or without divorce.

In all our social legislation over the past ten years, we have tried to be enlightened, humane and caring. Our approach has tended to be conservative rather than ultra liberal, but we have been equitable and progressive in the true sense of the word. It is an error to think if we do nothing, marriage will remain in its present state or even revert to some past ideal.

There are two fundamental issues in this debate: first, the weight to be given to the rights of a minority, those whose marriages have broken down and the degree of compassion that should be shown by society to individuals without damaging its fundamental interest; and, second, what action will contribute most to keeping the family as the fundamental unit of society. The law insists that a marriage exists no matter how long there has been a complete and irretrievable breakdown. That the law does not recognise that the life contract has been broken, or give freedom to enter another contract provided certain conditions are satisfied, does not change the reality that the contract has been broken. Divorce does not change the nature of the contract.

There has been an inevitable growth in relationships outside of marriage and children born outside of marriage now account for one in five births. People in long term relationships outside of marriage are in complicated legal situations without adequate protection. Many people in that situation want to be married and would like to have the right to remarry.

If this referendum is defeated it is unlikely another one will be held for a very long time. I would even go so far as to say, having listened to all the views, that there is not anybody in the House who will see another referendum on this issue. The arguments made in 1986 will not be valid next time round.

The law and the Constitution should reflect or, at least, take account of social reality. It could be argued that the constitutional ban on divorce is increasingly out of keeping with society. My party would not have been particularly eager to change the position if this could reasonably be avoided, reflecting the fact that undoubtedly there is only a reluctant public willingness to change. I do not detect an enthusiasm for this debate within the House, in my party, in any other party or among the people.

Most Members of Fianna Fáil, for whom I can speak, recognise there is a problem which has to be addressed. The parliamentary party has decided to support the passage of the referendum. Individual Deputies and Members have considered all aspects of the matter and have discussed it in detail with their colleagues, friends, family and so on. Many have deeply held views as to the undesirability of a "yes" vote. Their views must and will be respected and there will not be an effort to coerce them to another view. It is ironic that Fianna Fáil is the only party making a real allowance for freedom of conscience, on the substantive issue to be put to the people. We are proud to be able to accommodate differing views on the substance, unlike other parties who continuously preach about diversity.

The referendum is about restoring marriage to a central place in society, in that separated people will gain the legal right to remarry if the divorce referendum is passed. The common good will be better served by cautions and prudent change at this stage. There is also the issue of the civil rights of minorities and the compassion that society is prepared to show towards those who have serious problems.

In most other areas, society is prepared to give people who have made mistakes a second chance rather than condemn them for life. It is appropriate that we address this issue now and listen carefully to separated people's call for action on their behalf. As I said to the forum last week, I do not regard the Northern dimension as directly relevant to the situation even though divorce would be regarded by most people there as a civil right and a religious liberty. We all recognise that in any future United Ireland, such a right could not possibly be denied to those who can, at present, avail of it. It is significant that yesterday in discussions with my Deputy Leader and spokesperson on Foreign Affairs and the Ulster Unionist delegation they did not raise this issue. No doubt they properly regard it as entirely a matter for us. I, too, defend the right of people to take this very important decision in the light of their own needs and values, accepting but not being unduly influenced by the fact that others may decide to order things differently.

The people will ultimately decide and we will accept their decision. If it requires legislation we will deal with it but if not the matter rests for the long road. We on this side of the House will support the legislation and vote with the Government tonight and on the other stages. We will support a "yes" vote. However, many of my colleagues are against divorce and when they get the opportunity will vote against it.

I thank all the Members who have spoken. We have been accused of having a sham debate but this has been a good debate. I hope the debate nationally will take its cue from the measured and considered contributions of Members. In particular I want to thank my party colleagues, regardless of their point of view, for the way in which they put forward their views on what will go before the people.

I wish to share my time with Deputies Bhamjee and the Minister for Justice, Deputy Owen.

Is that agreed? Agreed.

This is one of the most important debates of recent times. Marital breakdown, unfortunately, is a reality in today's Ireland. In every county, town and village there have been marriage breakdowns. It would be wrong to ignore the plight of people caught up in such difficult and painful circumstances. We as legislators must make hard choices. We can either put our heads in the sand or deal with this very real social difficulty in a compassionate manner. It is inevitable that this issue should be put to the people yet again, given that some 75,000 people are in broken marriages. The Government has chosen the right option at this stage by giving people the opportunity in a referendum to introduce the right to remarry. The Government has a duty to introduce this badly needed social legislation.

The absence of divorce has not prevented marriage breakdown and it is no longer possible to ignore the situation. The day of reckoning is upon us. If we care about those who find themselves in this situation we have an obligation to deal with this problem in a fair and compassionate way. The right to end a marriage has existed for some considerable time but it is illegal to remarry. The referendum will, I hope, rectify this situation. I firmly believe it would be a grave injustice to those people who wish to begin afresh if they were deprived of the opportunity to do so. The introduction of divorce can bring hope to people whose marriage has irretrievably broken down.

On a personal basis I am reassured by the fact that it will be a requirement that couples must be separated for four of the previous five years before a divorce is granted. Just as the majority of Irish people, I too am opposed to quickie divorce. There are many people who are in second unions who wish to have their new partnership recognised. It seems only fair that these people be given the right to do so.

Ireland has changed considerably since the 1986 referendum. The nature of family life has been transformed. As a society concerned about family structure there is an onus on us to respond to these developments. Such changes have made us a more tolerant and open society and I believe we are mature enough to accommodate diversity and difference. As democrats we have a duty to those of different faiths and views to make them feel included and truly part of our society. Such diversity should be cherished and nourished as future generations will depend upon it.

Divorce is a civil right. It is unacceptable that some people are forced to be legally tied to a marriage that has ceased to exist as a loving and supportive relationship. People decide to leave such sundered relationships after long and careful consideration. Let no one think that divorce is entered into lightly. For some the right to remarry will allow them to restart their lives and give them their full right as members of society.

I am proud to say that the Labour Party will play an important and complete role in the campaign during the coming weeks. I firmly believe that the passing of the referendum will make Ireland a more tolerant and understanding place in which to live and hopefully a more compassionate society.

As a trustee of a divorce action group I will be supporting and canvassing strongly in County Clare for a "yes" vote, as I did in 1986 when I was chairman of the Clare Divorce Action Group. There is a fear that the referendum will be lost in rural Ireland so I hope that Deputies in rural areas will canvass and be more open. I do not think they will lose votes when they go out canvassing for a "yes" vote. The Catholic Church has recognised that marriages fail and has granted annulments. In my 20 years practising psychiatry I have noticed an increasing number of annulments being granted and it is much easier now to get one than it was ten years ago. I must refute the statement that divorce causes psychological effects on children, rather it is the constant rows the children see and hear at an early age that result in emotional damage. This is something that is quite important and will be the most difficult part of the canvass. People are concerned about that and I would expect Members to discuss with families the effects of divorce on children.

I welcome the thrust of the Bill in allowing divorced people to be married. Some couples who have failed in their first marriage have successful second relationships. The fear that happily married couples will be affected by the referendum is a myth that must be destroyed. Happily married couples do not need divorce. This Bill will provide an opportunity for those who are not happily married to leave the marriage.

I do not believe that there will be a rush to divorce. People will be much more cautious and there will be a trickle of cases until people see that the legislation is effective. I welcome this Bill and will be voting for it today. I will be out canvassing for a "yes" vote on 24 November. I thank Deputy Owen for sharing time with me.

I thank Members for sharing time with me. The Central Statistics Office labour force survey of 1986 showed that 19,300 married women listed themselves as being in some sense separated. That meant that 38,600 individuals were involved in marriages that were finished. By 1993 that number had increased to 75,400 individuals whose marriages were over.

In any other area of policy where it was evident that 75,000 people were suffering because of lack of legislation we would have already taken action to make good the damage being done. We have done so in many other areas of social policy where new or newly realised problems existed in our society. We have seen much amending legislation in the last five to ten years to take account of the sad increase in sexual abuse cases and of inequalities in a number of areas. If we had been in a position to amend our legislation without a referendum and allow some of those 75,000 people to remarry, we would have done so. This and other Governments have introduced 19 Bills in preparation for bringing this referendum before the people. This is the last step in the process of ensuring that people can if they wish — it will not be obligatory — reorder their lives and give themselves and their families another chance with the opportunity to remarry when this referendum is passed.

I hope, in the spirit of the debate we have seen over the last few days, the people too will recognise, now that the necessary legislation is in place to protect spouses and children in the context of property rights, legal aid etc., that this final legislation is required to make our society truly humane.

In the debate of the last few days a number of points were raised which I, as Minister for Justice, feel it appropriate to address. Following the enactment of the Judicial Separation Act, the number of applications for judicial separations increased by approximately 1,200 per cent. Unfortunately, our courts were not in a position to deal adequately with this huge increase. I am glad, therefore, that the Government has agreed to the terms of the Courts and Court Officers Bill which will come before the House during this session. This will allow for an increase of 17 in the number of court judges to include three Supreme Court judges, two High Court judges. seven Circuit Court judges and five District Court judges. It is an indication of the Government's intention to tackle the backlog in our court system.

As part of my programme in the Department of Justice, I recognised that existing facilities in our courthouses were not suitable for family law cases. In a number of projects, including those in Longford, Carlow, Carrick-on-Shannon, Cork, Galway and many others, family law suites are included in the refurbishment to take account of the sensitivities of people who have to go to court to deal with family law business. It is not appropriate that such cases be handled as they have been in circumstances and in surroundings that do not allow for privacy and take no account of the trauma of couples and children when they have to go to court. I am satisfied that there is now a recognition of the practical side of the difficulties people have. With those improvements I hope we will be able to deal with the backlog in our courts and that the passing of this referendum will not cause further difficulties for people going through the court system.

Limerick East): I am replying to the debate on behalf of my colleague, the Minister for Equality and Law Reform, Deputy Mervyn Taylor, who is unavoidably absent today. I have asked the officials to circulate my speaking notes. I do not think I will have time to read them all, but they were drafted in reply to queries raised on both sides of the House. If I do not get around to reading them, Deputies can treat them as written answers to questions raised by different Deputies in the House.

I thank all the Deputies who contributed to the debate. The interventions were, for the most part, measured and considered in their content, and the debate has been conducted in a way that I hope will be an example to the rest of the referendum campaign outside this House. I echo the call for a civilised and objective debate from the Minister of State, Deputy Durkan, Deputy Andrews and the Leader of the Opposition, Deputy Bertie Ahern.

In a very constructive intervention, Deputy Woods, supported by a number of Deputies on the Fianna Fáil side, suggested that a five year strategic action plan should be drawn up to deal with the aftermath of divorce. He helpfully went though the key elements which he saw as featuring in this plan and he will forgive me if I choose to highlight what I see as its main elements. It has already been indicated that the recommendations in the Fianna Fáil policy document on children will be studied carefully. However, even with the best intentions, it would be difficult to have a completed plan, properly costed and applied, in advance of the referendum. Nonetheless, the Deputy might acknowledge that many of the essential ingredients of the plan are already being progressed.

For many Deputies, and for the majority of citizens, the possible impact of divorce on children is the key issue. It is important to separate fact from fiction in respect of the impact of divorce on children. It is difficult to disengage the problem of marriage breakdown from the question of divorce. Nonetheless this has to be done if the issues are not to be put in a false context. This is particularly important when dealing with the impact of divorce on children because it is quite clear that the absence of divorce has not safeguarded those who are witnesses to the disintegration of their parents' marriage and who have suffered the emotional turmoil consequent upon disintegration. Speaking in a professional capacity as well as a parliamentary one, Deputy Bhamjee has already drawn attention to this.

There is a wide range of legislative provisions now in force which are of relevance to the plight of a child whose parents' marriage has broken down. The reality, however, is that these matters are not always capable of being regulated precisely by the legislation which, at most, can offer a rational framework within which compassionate and caring arrangements can be worked out so that the welfare of children is always to the forefront. In certain circumstances, we must be honest and admit that the State cannot compel good behaviour between spouses in marital difficulty. Such spouses have an important and personal responsibility to ensure that their separation is managed in a way which impacts with minimum trauma on any children of the marriage and that the children do not become a weapon in emotional battles which are so often and so regrettably a feature of marriage breakdown world-wide.

However, the State can ensure that the support services are there to facilitate spouses who wish to manage their separation in a structured and civilised manner. Considerable research has been done in other countries in relation to the effect of divorce on children and it is regretted that many who are opposed to divorce in this country are willing to engage in the too easy identification of the presence of divorce with unquantified and harmful consequences for the well-being of our children. This ignores the research which suggests strongly that the difficulties which studies observe in children of divorced parents are often evident prior to the divorce itself. In other words, it is the situation of marital conflict, something which is already unfortunately clearly present in Ireland, which gives rise to behavioural problems and emotional distress. It is true that those problems, in turn, may be minimised or exacerbated by the way in which the divorce is managed so that, for example, the more aggressive the behaviour of the parties to the divorce the more likely it is that any trauma the child is already experiencing will be increased. However, this is not to deny the basic premise that it is the discord within marriage, which often exists for many years prior to the divorce, that can be the main source of damage to children.

We must also be careful about making generalised statements which fail to do justice to the complexity of the picture. Many factors will influence the way in which children will adjust to parental separation. The age of the child is obviously material, as is the extent to which conflict is a feature of the separation. Any change in economic status is also relevant as is the case of a child who has been subjected to abuse or violence and the separation results in a dramatic improvement in his or her circumstances.

A great deal of attention has focused on the overall findings of the Exeter study published in early 1994. However, insufficient attention has focused on the fact that the data in that study did not demonstrate that the outcome for the children involved in it would have fared better if the parents in unhappy marriages had stayed together for the sake of the children instead of separating. Above all, the study did not reveal that children of divorced parents did any better or worse than children of parents who simply separated without a divorce.

It would be foolish to deny that a child's psychological well-being can be damaged as a result of marriage breakdown. However, even within a so-called intact family, there is a wide variety of potentially damaging experiences to which a child can be exposed. The Government is committed to sustaining the family and, in so far as is practicable, minimising the problems consequent on marital breakdown. To this end, financial supports have been put in place, resources have been increased and there is a greater emphasis on mediation and counselling. In our schools more attention is being paid to the development of relationship skills which over time may pay dividends in terms of our young people being better prepared for the difficulties which can sometimes arise in the course of marriage. Increasing the age of marriage to 18, as provided for in the Family Law Act, 1995 should also be helpful. Other legislative action aimed at putting children's interests more firmly at the centre when a marriage breaks down may also be possible and the Government is willing to listen to proposals for reform in this area. However, ultimately, the difficulties experienced by children are due to marriage breakdown and not to the fact that one or other parent has a subsequent right to remarry.

Deputy Woods again strongly advocated the protection of the family. In this regard I remind the House that this Government's policy, as set out in the programme, A Government of Renewal, is to reform our tax system and in particular to relieve the tax and PRSI burden on those with low incomes, especially those with families. In line with this commitment, considerable improvements were made in this year's budget in the tax and PRSI systems. In addition, significant increases were made in child benefit, the most significant for a long time.

The Government's commitment to support the family is also evident in its decision to establish a commission on the family, whose task it will be to analyse the needs and priorities of families in the light of changing socio-economic circumstances.

Various claims were made about divorce impoverishing women, but many Government speakers pointed out that this will not be the case and that such arguments do not stand up. One item which has been raised both inside and outside the House is the devalued argument that divorce will mean that all constitutional protections will move to the second family and that the first family will thereby lose out. This is simply not true.

What is true is that divorce will dissolve the relationship between the spouses. However, it does not follow that such dissolution will affect any of the rights conferred by Articles 41 and 42 of the Constitution on parents vis-ávis their children or on children vis-ávis their parents. Parents remain parents after a divorce and that divorce can in no way diminish their inalienable rights and duties in respect of their children. Furthermore, as with the offsprings of married parents, and therefore members of families based on marriage, the children of divorced parents retain their constitutional rights under relevant Articles even when the ties between their parents are severed.

In addition it should be noted that under the Government's proposals an added constitutional protection is being given to families in that before granting a divorce a court must be satisfied that, having regard to the circumstances, proper provision has been, or will be, made for spouses and children. A judge in a family court may not grant a dissolution unless he is satisfied that such provision has been made.

The Progressive Democrats Party has put forward the case both inside and outside this House that it would be better if some of the conditions under which dissolution is granted were not enshrined in the Constitution. That is a tenable proposition and many people have canvassed for that in the past. However, I will outline some difficulties which would arise from that. A divorce will not be granted unless certain conditions are met. There will be literally dozens of conditions to be met before a couple are allowed to dissolve their marriage and are given the right to remarry. Some of those conditions will be handed down by the judge on the day in court, others will be enshrined in the statute law, a draft of which is being published by my colleague and we have decided that some of them should be written into the Constitution.

The argument is not about what conditions should apply but about whether they should be enshrined in the Constitution or in statute law. In circumstances in which we have a form of direct democracy and when a prohibition on divorce is enshrined in the Constitution, it is only reasonable that we should insert some of the primary conditions under which divorce should be granted into the Constitution. There is nothing wrong with that. Perhaps, instead of using the word "Constitution", we should use the German term, "the basic law". We know that all statute law must comply with the basic law, which is the Constitution and that such law cannot be changed without reference to the people. What is so wrong about referring the primary conditions under which divorce is granted to the people when the present constitutional position prohibits divorce?

This is an argument about ways and means and I understand the Progressive Democrats position. That party can argue that all conditions should be enshrined in statute law or handed down by the judge on the day in court and not enshrined in the Constitution, but the Government holds a different view. We believe that the primary conditions should be enshrined in the Constitution and that there should be further references to the people if there is an attempt to change them.

I have two difficulties with the Progressive Democrats position. Some of its members have argued their case in such absolute terms that it will be untenable for them to go forth from this House and advocate a "yes" vote. I accept that is not the official position but some of its speakers went beyond ways and means of dealing with the matter and argued totally against the principle. That party has cut a stick that others will use to beat it when this debate goes to the country.

The Government has cut the stick and it will soon discover it is wrong.

(Limerick East): We will wait and see. Also, the Progressive Democrats Party is suggesting that the public should buy a pig in a poke because, while arguing that the conditions should be a matter for statute law, its members have not specified the conditions under which their party would allow divorce. If the debate is simply about whether the conditions should be enshrined in the Constitution or in statute law, the Progressive Democrats should be forthright with the public and spell out the conditions under which divorce should be granted. It is not fair that the people should have to vote blindfolded, not knowing what would ensure in the House.

That is what was said in 1983.

(Limerick East): For that reason I ask all Members of the House to reject the Progressive Democrats' amendment even though what they advocate is tenable.

The Minister of Justice dealt with the issue of court delays. I would like to outline to the House what the Minister and his predecessor and, indeed, Fianna Fáil Ministers, have done to progress and improve marriage counselling, mediation in marriage and to improve the legal aid system, but time does not allow. If Members wish they may refer to my speaking notes in that regard.

Many people, both inside and outside the House, referred to the fact that the Government proposes to expend up to £500,000 on an information campaign. The Government has a duty and responsibility to inform the public about its proposal. In this context it has already produced an information paper on the divorce referendum entitled The Right to Remarry. This paper details the legislative framework and the support services — mediation, counselling and legal aid — that are in place to deal with marriage breakdowns and which would apply on the introduction of divorce. The paper also contains the text of the Fifteenth Amendment of the Constitution (No. 2) Bill, 1995.

An information leaflet has been prepared which addresses briefly the issues in the debate. This leaflet contains information only and was prepared in response to requests from interest groups for information about the law and support services in relation to aspects of marriage breakdown and for information about divorce.

As Deputies will be aware, the Government has announced that it proposes to provide a facility to groups representative of the arguments for and against divorce to make their case to voters. My colleague, the Minister for the Environment, is making the necessary arrangements and an ad hoc commission has been established to oversee this process.

I detect a great degree of unanimity in this House. There is unanimous agreement that the issue should be put to the people while a huge majority in all parties believe that we, as legislators, should advocate to the people that they should vote "yes". As Deputy Ahern said, the law should, as far as possible, be in accordance with social practice. If social practice has brought about a situation where marriage breakdown and separation are widespread it seems we should extend to separated people the facility to bring their new relationships into accord with the law. If there is no law available, they cannot do so.

All we are proposing is that this facility be provided. This will not lead to Nevada or Haiti type divorce and is not a cure for adultery, violence or any other difficulty. Divorce will only be granted by a court under certain conditions enshrined in the Constitution after persons have been separated for four years out of five in circumstances where the judge is sure that proper provision has been made for spouses and children. I recommend the Bill to the House.

Cuireadh an cheist: "Go bhfanfaidh na focail a thairgtear a scriosadh cuid den phríomhcheist."

Question put: "That the words proposed to be deleted stand part of the main question."
Rinne an Dáil vótáil.
The Dáil divided: Tá, 125; Níl, 10.

  • Ahearn, Theresa.
  • Ahern, Bertie.
  • Ahern, Dermot.
  • Ahern, Michael.
  • Ahern, Noel.
  • Allen, Bernard.
  • Andrews, David.
  • Aylward, Liam.
  • Barrett, Seán.
  • Bell, Michael.
  • Bhamjee, Moosajee.
  • Boylan, Andrew.
  • Bradford, Paul.
  • Bhreathnach, Niamh.
  • Bree, Declan.
  • Brennan, Matt.
  • Brennan, Séamus.
  • Broughan, Tommy.
  • Browne, John (Carlow-Kilkenny).
  • Browne, John (Wexford).
  • Bruton, Richard.
  • Burke, Liam.
  • Burke, Raphael P.
  • Burton, Joan.
  • Byrne, Eric.
  • Byrne, Hugh.
  • Callely, Ivor.
  • Carey, Donal.
  • Flanagan, Charles.
  • Flood, Chris.
  • Foley, Denis.
  • Gallagher, Pat.
  • Harte, Paddy.
  • Haughey, Seán.
  • Higgins, Jim.
  • Higgins, Michael D.
  • Hogan, Philip.
  • Howlin, Brendan.
  • Hughes, Séamus.
  • Jacob, Joe.
  • Kavanagh, Liam.
  • Kemmy, Jim.
  • Kenneally, Brendan.
  • Kenny, Enda.
  • Kenny, Seán.
  • Killeen, Tony.
  • Kirk, Séamus.
  • Kitt, Michael P.
  • Kitt, Tom.
  • Leonard, Jimmy.
  • Lowry, Michael.
  • Martin, Micheál.
  • McCormack, Pádraic.
  • McCreevy, Charlie.
  • McDaid, James.
  • McDowell, Derek.
  • McGahon, Brendan.
  • McGinley, Dinny.
  • McGrath, Paul.
  • McManus, Liz.
  • Moffatt, Tom.
  • Morley, P.J.
  • Connaughton, Paul.
  • Connolly, Ger.
  • Connor, John.
  • Costello, Joe.
  • Coughlan, Mary.
  • Coveney, Hugh.
  • Cowen, Brian.
  • Crawford, Seymour.
  • Creed, Michael.
  • Cullen, Martin.
  • Currie, Austin.
  • Davern, Noel.
  • Deasy, Austin.
  • Deenihan, Jimmy.
  • Dempsey, Noel.
  • De Rossa, Proinsias.
  • Doherty, Seán.
  • Doyle, Avril.
  • Dukes, Alan M.
  • Durkan, Bernard J.
  • Ellis, John.
  • Ferris, Michael.
  • Finucane, Michael.
  • Fitzgerald, Brian.
  • Fitzgerald, Eithne.
  • Fitzgerald, Frances.
  • Fitzgerald, Liam.
  • Flaherty, Mary.
  • Moynihan, Donal.
  • Mulvihill, John.
  • Nealon, Ted.
  • Nolan, M.J.
  • Noonan, Michael (Limerick East).
  • Ó Cuív, Éamon.
  • O'Dea, Willie.
  • O'Donoghue, John.
  • O'Hanlon, Rory.
  • O'Keeffe, Batt.
  • O'Keeffe, Jim.
  • O'Leary, John.
  • O'Rourke, Mary.
  • O'Shea, Brian.
  • O'Sullivan, Toddy.
  • Owen, Nora.
  • Pattison, Séamus.
  • Penrose, William.
  • Power, Seán.
  • Quinn, Ruairí.
  • Ring, Michael.
  • Ryan, Eoin.
  • Ryan, John.
  • Ryan, Seán.
  • Shortall, Róisín.
  • Smith, Brendan.
  • Smith, Michael.
  • Stagg, Emmet.
  • Timmins, Godfrey.
  • Treacy, Noel.
  • Upton, Pat.
  • Wallace, Dan.
  • Walsh, Eamon.
  • Walsh, Joe.
  • Woods, Michael.

Níl

  • Clohessy, Peadar.
  • Gregory, Tony.
  • Harney, Mary.
  • Keogh, Helen.
  • McDowell, Michael.
  • Molloy, Robert.
  • O'Donnell, Liz.
  • O'Malley, Desmond J.
  • Quill, Máirín.
  • Sargent, Trevor.
Tellers: Tá, Deputies J. Higgins and B. Fitzgerald; Níl, Deputies Keogh and O'Donnell.
Question declared carried.
Fáisnéiseadh go rabhthas tar éis glacadh leis an gcheist.
Fáisnéiseadh go rabhthas tar éis diúltú don leasú.
Amendment declared lost.

I declare the Bill to be read a Second Time in accordance with Standing Order 94 (2). I understand it is intended to refer the Bill to the Select Committee on Legislation and Security.

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