In accordance with the order of the House today the motion re. Statement for Information of Voters, item No. 4, will be taken together with the Fifth Stage of the Fifteenth Amendment of the Constitution (No. 2) Bill 1995 for the purposes of debate. However, it is only necessary for the Minister to move the Fifth Stage motion at this time. At the conclusion of the debate I will be asking him to formally move the motion which will then be decided without further debate.
An Bille um an gCuigiú Leasú Déag ar an mBunreacht (Uimh. 2), 1995: An Cuigiú Céim. Fifteenth Amendment of the Constitution (No. 2) Bill, 1995: Fifth Stage.
Tairgim: "Go rithfear an Bille anois" I move: "That the Bill do now pass".
I express my appreciation to Deputies on all sides of the House for participating in what I consider to have been a most constructive and useful debate as it progressed through the House. What I would like to do now, in very brief terms, is to deal with some of the false impressions being given about the implications of introducing a limited form of divorce into this jurisdiction.
It has been claimed that divorce will discriminate against the first family and in favour of the second. The constitutional amendment is framed precisely in order to ensure that proper provision, having regard to the circumstances, will be made for divorced spouses and for children. In addition, while divorce dissolves the relationship between the spouses, it does not diminish their inalienable rights and duties in relation to their children.
There has been criticism that the amendment would permit divorce even when the spouse seeking a divorce has not left the family home. It is true that, in certain circumstances, it is likely that the living apart criterion will be interpreted so that a couple may be under the same roof but in two separate households. I see nothing wrong in that. The concept of living apart is already applicable in judicial separation proceedings.
It has also been said that the amendment will allow one spouse to be divorced against his or her will. Many spouses have already been deserted against their will and are left with no legal remedy whereby they might rebuild their lives by embarking upon a second marriage. We as a people need to focus on what we understand by the marriage tie. Surely our understanding is deeper than considering it a formal contract whose letter must be adhered to even though everything that might make the relationship real has long since vanished. Marriages break down. Sometimes both partners accept that fact. Sometimes one will cling to the hope of reconciliation. The State has no part to play in locking people into marriages in which they no longer wish to remain. Divorce is not a perfect option but it provides a legal remedy for those who wish to enjoy a second chance when their marriages have ended.
Other arguments, with little merit, have begun to crop up in recent days. It has been said that divorce rewards desertion but I can assure the House that the conduct of the parties will be a factor when a court has to consider the financial and property adjustment orders it should make in an individual case. The premature break-up and sale of family assets is claimed to be a consequence of divorce. This ignores the reality that similar orders are being made by the courts under the Judicial Separation and Family Law Act, 1989 and I have heard no great outcry about the dissipation of assets in relation to that Act.
As in 1986, it is again being sought to make succession rights an issue. It is true that, following a divorce, the spouses concerned cease to be spouses for the purposes of the Succession Act, 1965. At present, in judicial separation cases, many spouses have their succession rights against each other extinguished and the position is not entirely dissimilar in respect of divorce. What must be noted, however, is that in a divorce context, in making the various financial adjustment and property orders at its disposal, a court must have regard to the spouse's loss of succession rights. If adequate provision cannot be made for a spouse at the time of the granting of a divorce decree, I would envisage that such a spouse, providing that he or she has not remarried, would be entitled to apply subsequently for appropriate provision to be made out of the estate of a former spouse. This possibility is provided for in the draft Family Law (Divorce) Bill published recently. The succession rights of children will be unaffected by the divorce of their parents, whether it be their right to succeed on intestacy or, where a will has been made, to bring an application for proper provision out of their deceased parent's estate on the grounds that a parent has failed in his or her moral duty to make such provision for them, as provided for in the 1965 Act.
It is surprising that the issue of pensions also appears to be surfacing again, despite the fact that there are detailed provisions to ensure that, on a divorce, pension adjustment orders can be made so that a dependant spouse can obtain a portion of the retirement benefit of his or her spouse. The possibility of creating a separate and independent benefit in favour of the dependent spouse will also exist.
A final issue, and one about which we have heard much in recent weeks, concerns the rights and welfare of children,. In this context, it is important to distinguish between material and emotional welfare. When parents separate it is important that the material welfare of their children is safeguarded and the legislative framework is in place to ensure that parents maintain their children where this is possible. Where it is not, the social welfare system will provide financial support. The modifications introduced by the Social Welfare (No. 2) Act, 1995 guarantee that the children of divorced parents will be treated no less favourably than the children of separated parents at present.
In emotional terms, children in an ideal world have a right to the society of both parents and to a loving and caring home. However, with the incidence of marriage breakdown today, those rights are already being violated. Through providing increased financial resources for mediation the State can try to ensure that the breakdown is managed in such a way that does least damage to children. It can also put in place legislation which ensures that, in matters affecting children, the welfare of the individual child is always the paramount concern. This has already been done.
Nobody would be foolish enough to deny that the breakdown of a marriage may have a detrimental effect on children, but we must separate the damage caused by the conflict leading up to the actual breakdown from that which may be attendant upon the separation. In many cases it is the former that is likely to give rise to the most trauma.
I thank Members for the care they exercised in examining the Bill and for the temperate manner in which they expressed their points of view. I look forward to embarking on the campaign trail with other parties and I fervently hope that our combined efforts will result in the Irish people voting "yes" in the referendum on 24 November.
The Bill has completed all Stages and we agree that it should be passed. We have had a broad-ranging debate in which there has been wide participation. I pay tribute to the Minister's officials who were helpful in providing information on this complex issue.
The Bill gives the people an opportunity to vote on 24 November on whether we wish to remove the constitutional ban on divorce and allow a court, designated by law, to grant the dissolution of marriage under certain conditions. We support the Bill for three reasons. First, it provides the people with an opportunity to vote and to indicate their wishes on this important issue which, ultimately, is the most democratic approach to take. Second, the amendment makes provision for the important criteria set down by Fianna Fáil to prevent quickie divorces, provides an opportunity for reconciliation between the spouses whose marriages have broken down and protects the position of children, vulnerable spouses and other family members.
Under the proposed amendment, a court may grant a dissolution of a marriage only where these criteria are met. That is what we asked the Government to include and that is what has been done. Third, if the people vote "yes" in the referendum the amendment, including the safeguards, will become part of Article 41 of the Constitution which provides constitutional protection for the family. That Article states that, "The State recognises the Family as the natural primary and fundamental unit group of Society...". Certain confusion has been created outside the House regarding the position of the family and for that reason I stressed the necessity to insert this amendment in Article 41. That Article also states that the State "...guarantees to protect the Family in its Constitution and authority..." and, furthermore, "The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack".
It is in this strongly family oriented context, which places heavy obligations on the State, that the amendment which will pass today would be placed. In the course of the debate we indicated, and our researches have shown, that there is a down side to marriage breakdown and divorce that cannot be ignored, especially if children are involved. The Minister referred to this when he spoke about the material and the psychological difficulties that can arise in marriage breakdown, separation and divorce and stressed that, from the point of view of legislation, the necessary steps have been taken.
While much has been done during the past nine years, through the introduction of necessary legislation and improvements in support services, to deal with the problems associated with marriage breakdown and separation, outstanding issues need to be tackled now in a positive and urgent way. That is the reason my party proposed a five year strategic action plan. Marriages and especially children must be protected and supported. The Government must put this plan into effect now.
Central elements of the plan include measures to enhance the status and perception of marriage and to support families under pressure; substantially increased counselling services and a provision which would place an obligation on spouses in cases involving divorce or separation to participate in the counselling process, particularly where children are affected. Because I recognise that a good deal has been done in each of these areas already I say we should complete the work and devise a plan to cover the first five years to ensure that the best intentions of Members on all sides of the House are fully realised.
In addition, there is a need to provide for better support services and "time out" for parents who care for children in the home. There is also a need for a national network of skilled, professional mediation services to minimise the harmful emotional and psychological effects of separation and divorce on children and for a commissioner for children who would be responsible for highlighting to parents the needs of children in cases involving marriage breakdown or divorce and for pressing the needs of children in court, where necessary.
It would also be helpful if parents were required to attend an information session on the short and long term effects of marriage breakdown and divorce on children and advise them on the legal implications of guardianship, custody and access for themselves and their children and the potential financial costs of separation and divorce. There is a need for an immediate upgrading of family courts with the appointment of extra judges and the provision of suitable private consultation and waiting rooms.
When replying to the debate on Second Stage the Minister said he accepted the need to make further provision in each of these areas, but felt it would be difficult to devise a five year plan prior to holding the referendum. I call on the Government to give a firm commitment that it will introduce such a plan and to set out its proposals well in advance of the referendum.
While I accept he will not be able to complete all the details the Minister should at least set out the parameters of such a plan, to which Members on all sides of the House would be committed, so that the people will know that while much has been done, that which remains to be done will be done urgently because of the changes that could take place during the first five years.
Regardless of whether the referendum is passed most of these changes will occur in any event. Consequently, my party hopes the Minister will proceed along these lines.
This has been a good debate which has been handled by Members on all sides of the House in a sensitive and thoughtful way. Deputies expressed support for the measure and, in some cases, their individual concerns.
Deputy Keogh and her colleagues tabled their amendments in the sincere belief that it was the better way to proceed. My party could not agree because it strongly felt that it was important to have these safeguards included in the Constitution. Deputy Keogh mentioned that our children have a fundamental right to be protected. That is the reason my party made the argument strongly throughout the debate on this important Bill which could have long term effects on society, that this safeguard should be included in the Constitution.
We support this Bill and wish the Minister well.
My party would like to see the State give people a second chance. Although I disagree with the tactical approach adopted by the Minister I wish him well and sincerely hope his tactic works.
There is widespread support among Deputies on all sides of the House for the right to remarry, even among those whom I would regard as conservative in their views. This is very heartening. Those who do not support the right to remarry are also sincere in their views, but the overwhelming reason many people support the proposal that the Constitution should be amended to permit the right to remarry is that they wish to show compassion for those who find themselves in the unfortunate position where they cannot have a second relationship or family, as they see it, regularised and where there is no legal redress. We have to come to grips with this problem and legislate for these people. They cannot be ignored.
There are now 19 separate Acts on the Statute Book. This should provide reassurance. It behoves all of us to make people aware of the safeguards which exist. It must also be acknowledged that there is a need to provide greater support for families and children in particular.
The Minister mentioned that financial support for counselling and mediation services has been increased, but there is a need to ensure that adequate resources are made available on an ongoing basis for the many voluntary organisations providing these services. In a sense, it is extraordinary that the organisations advocating a "yes" vote in the referendum include agencies dealing with the causes of marriage breakdown and providing refuges for battered wives and children. That is indicative of the support the Minister and the Government will receive from those who know that we must deal with the reality of marriage breakdown and cannot ignore it.
It is important that we do not see women as victims. It is extraordinary that the "no" campaign seems to be expressing the same fears as it did in 1986 and portraying women as dependants and victims. That is wrong when we consider that, in the main, women seek judicial separation and barring orders and will in future seek divorce. Many women want to put the past behind them and rebuild their lives. In many cases they want the right to remarry and enshrine their new families in a legal framework. I hope that facility will be provided at long last.
Deputy Woods referred to the family law courts. Presumably, there will be a backlog of cases. I ask the Minister for Justice to provide judges, ensure there is proper training for them and that a proper family court system is available to those who wish to deal with their difficulties in that way.
Marital breakdown is a complex area. The simplistic views of many on the "no" side of the campaign are untenable. I do not propose to delay the House by dealing with the fears expressed at the outset of that campaign. I intend to campaign vigorously notwithstanding my disagreement with the tactical approach of the Minister. I wish him well in his efforts and I hope that the right to remarry will be enshrined in our Constitution. I thank him for his courtesy in listening to the many arguments put to him and also thank his officials for their courtesy and the work they have done. I hope the Minister receives widespread support from all Members and that those who expressed support here will translate that into active campaigning for the right to remarry.
Cuireadh agus aontaidh an cheist.
- An Bille um an gCúigiú Leasú Déag ar an mBunreacht (Uimh. 2) An Tuarascáil agus an Chéim Dhéireadh. Fifteenth Amendment of the Constitution (No. 2) Bill, 1995: Report and Final Stages.
- Back to table of contents
- Ráiteas mar Eolas do Vótálaithe: Tairiscint. Statement for Information of Voters: Motion.