Dáil Éireann debate -
Thursday, 27 Jun 1996

Vol. 467 No. 6

Family Law (Divorce) Bill, 1996: Second Stage (Resumed).

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

The fact that this Bill was published just days after the Supreme Court judgment demonstrates the Government's commitment to regularising the position of the estimated 80,000 people who currently find themselves in a legal limbo. Publication of the Bill, which I hope will progress swiftly through the Oireachtas, is an important milestone in the process of civil reform. The laws and institutions of a democratic society must allow for the aspirations of all its members. It must also reflect social reality. Families in all their permutations make up Irish society. The 60 year old prohibition on divorce has not prevented family breakdown. It has, however, made it more difficult for families in crisis to resolve their difficulties with dignity and finality.

In the Ireland of 1996 families are under threat, not from divorce but from poverty, social disintegration, marginalisation and a myriad of other social and economic factors. The cohesive strength of family life is undermined by such factors. It would be simplistic and wrong, however, to equate poverty with marital breakdown.

Having a job and security reinforces the ties that bind people together but essentially marriage is a contract between two individuals that depends on the free choice of both parties. The changing of attitudes and the behaviour or outlook of each partner are also central to whether a marriage succeeds.

Last year, the Minister for Social Welfare, Deputy De Rossa, established the Commission on the Family. The brief of the commission is to analyse the needs and priorities of families in the light of changing socio-economic circumstances. The commission will make a valuable contribution to the development of public policy in this area.

Those who voted for the Government amendment last November are not necessarily pro-divorce; I have yet to meet a person who would claim to be pro-divorce. Those who voted "yes" were facing up to reality. They were voting for tolerance and pluralism, for a resolution of conflict, for certainty rather than uncertainty and for civil and social reform.

The people who voted against the amendment did so because of profound and sincere concerns about the impact of divorce on families and on society as a whole. I did not share their view on the amendment but many of the concerns about the future of families are shared by those who voted for divorce, including myself, and they must be addressed. The Commission on the Family has an important role to play in that regard. I hope it will be possible for all sections of society to bridge the divisions that emerged during the referendum campaign and to work together to strengthen families.

One of the factors driving families apart is domestic violence. Violence in the home is as unacceptable as violence in the streets. As somebody who worked for a long time with the victims of domestic violence I welcome the fact that such violence is no longer acceptable. It continues to be a feature of Irish life and it will not go away in the near future but it is no longer acceptable and it is not hidden in the absolute way it was in the past.

Victims of domestic violence are reaching out for help and that is an important breakthrough. In 1993, 5,000 calls were received by the women and child unit of the Garda in the Dublin area alone. A total of 6,000 calls were received in that year by Women's Aid. That is an indication of the extent of domestic violence and the fact that women and children are understanding the concept of zero tolerance in relation to domestic violence.

I welcome the legislation introduced by the Minister for Equality and Law Reform which will improve the law in relation to domestic violence. That legislation, which protects cohabiting partners and parents as well as spouses and children, recognises that the nature of Irish households has changed over recent decades and that the nature of domestic violence has changed also. That recognition of change must be central to the process of civil reform. In accommodating change, we are ensuring that the aspirations of all our citizens are recognised in our social and legal provisions.

When the referendum was put to the people the Government took the unique decision to publish the Bill in draft form. The Bill before us today was, in all its essentials, put to a popular vote last November. It was in the context of the provisions in the draft legislation published last year that a majority of people voted for the amendment. It is important that we stay true to the spirit of that decision.

Having been an Opposition Deputy I understand the impulse to propose amendments to Government legislation. Opposition amendments often clarify and improve legislation but this case is different. To all intents and purposes the legislation has been passed not by one or both Houses of the Oireachtas but by the people from whom we derive our authority. Were the final Act to differ substantially from the draft legislation published before the referendum, it would have serious implications, not only for the relationship of trust between voters and public representatives but also for the conduct of future referenda.

I hope in the light of these considerations the parties opposite will reconsider any amendments they intend tabling and that the progress of this legislation through the Oireachtas will be marked by the same degree of crossparty unity which marked the conduct of the referendum campaign.

It is just over 70 years since the question of divorce and the associated questions of pluralism, compassion and tolerance first entered political debate. Speaking in the Seanad in 1925, Senator W.B. Yeats advised those who were impatient for change that there was no use quarrelling with icebergs in warm water. He went on to state his belief that when the icebergs finally melted, Ireland would become an exceedingly tolerant country. He spoke on behalf of his Protestant brethren but he spoke for others too who wished to see a tolerant and pluralist society. He stated:

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. I am proud to consider myself a typical man of that minority. We against whom you have done this thing, are no petty people. We are one of the great stocks of Europe. We are the people of Burke; we are the people of Grattan; we are the people of Swift, the people of Emmet, the people of Parnell. We have created the most of the modern literature of this country. We have created the best of its political intelligence. Yet I do not altogether regret what has happened. I shall be able to find out, if not I, my children will be able to find out whether we have lost our stamina or not. You have defined our position and have given us a popular following. If we have not lost our stamina then your victory will be brief and your defeat final, and when it comes this nation may be transformed.

Time is different now and we are bringing in legislation which truly reflects pluralism and a tolerance for difference. This is important legislation but it is only one part of an overall package of legislation which recognises that human beings are different and that they are entitled to a second chance if their marriages fail. That is part and parcel of the views expressed by W.B. Yeats in the Seanad in 1925. People's civil rights must be recognised.

I welcome the Bill, which represents great progress and will help to transform Irish society, and look forward to its passage through the Oireachtas.

Mr. Kenneally

I welcome the opportunity to contribute to the debate on the Bill. When the Bill to provide for the amendment to the Constitution in relation to divorce was debated in the House last year I said I was conscious it was one of the most important ever to be discussed in the House, not because it was part of the socio-sexual agenda but because it would affect the very fabric of our society for a long time.

I am still of that opinion and harbour the same sentiments about the measure before us today. There is a major difference on this occasion and that is that the people have been consulted in the meantime and have expressed their opinions on the matter, if not over-whelmingly, at least conclusively.

That decision has since been ratified in the highest court in the land which is the reason we have this proposal before us today. I do not agree with its measure in the same way I did not agree with the original proposal but I accept the democratic will of the people.

When the Minister closed his book after the referendum result was announced and declared the task done, I was reminded of the words of Banquo, after Macbeth, in questionable circumstances to say the least, had finally assumed the throne of Scotland. He said:

Thou hast it now: King, Cawdor, Glamis, all

As the weird women promised; and I fear

Thou played'st most foully for it.

Nobody can claim that the result of the referendum was satisfactory and, in other circumstances, such a slim majority would signal a maintenance of the status quo. However, such a course is not open to us and we must put in place the necessary legislation to give effect to the decision. This Bill attempts to do that but to turn this proposal into proper legislation is like trying to make a silk purse out of a sow's ear.

Divorce was touted as a panacea, if not an outright cure, for all ills in marriage breakdown in the frenzied rush to impose it on the people. As I said previously in this context, the divorce campaign has not been characterised by honesty on the Government's part, no more that the same parties, albeit without Democratic Left, were honest with the people in 1986. Rash claims were made that anybody who had a difficult life within their marriage would have the means to get out of it if the measure was approved by the people. That is not the case.

This is legislation for the better off and, without the required money, one must do without divorce and the dubious benefits it brings. There was little talk about the costs involved before the referendum. Nobody spoke about the £10,000 divorce or the fact that the minimum it would cost if there was agreement between the parties was £1,500. Where will the plain people of this country who have little or no property and resources get that sum of money? This is dishonest legislation, a measure which gives false hope to those who innocently think they can go into court and have their marriage declared over and get on with their lives. That is not the case. Money, as always, will speak volumes in the courtroom and without money access is denied, as a computer game would put it.

Remarriage, as Dr. Johnson observed, is the triumph of hope over experience. We are told that many people in this country harbour hopes of getting back into the marriage market courtesy, of this Bill. They can do that if they have money but if they do not they can stay married as far as the Minister and the lawyers are concerned. One can talk about free legal aid but access to the courts will be so difficult that one might as well ask the organisers of the national lottery to pick the few lucky people who will get into the courts, in the same way as they picked the visitors to the American aircraft carrier.

The Courts and Court Officers Act provided for the appointment of additional judges and streamlining the work of the courts. Much of this will be set at naught by the increased business of the divorce courts and I have no confidence in either the Minister's resolve or ability to extract from Cabinet the resources to appoint further judges. He can hardly claim that he provided judges for divorce cases in the last round of judicial appointments when not only this legislation but the constitutional amendment had not been approved. I hope there will be no clawback in the improvements effected by the Courts and Court Officers Act. That would be a shattering blow to those who have been waiting for years for justice from this State.

As a result of the nature and intensity of resistance to divorce, the Minister had to make concessions which will make the work of the courts far greater than in other jurisdictions. This means that more court time will be spent on the questions of reconciliation and mediation which makes the appointment of more judges a sine qua non for the proper administration of this measure.

The Bill runs to 37 pages and the social and humane provisions are dispensed with by page 11. The rest of the Bill deals with economics, property, pensions, actuarial matters and worldly goods. There is little or no mention of or provision for compassion and counselling, the alternatives that were bandied about by the Minister and his colleagues as they strove in every way possible to sway a majority of the electorate towards their way of thinking and conditioned them accordingly in the run up to the referendum.

Will the Minister provide State mediation and counselling services or has this commitment gone the way of so many others of this discredited Administration? Is he not aware that many of the agencies which provide these services, often on a voluntary basis, are being slowly strangled by lack of funding? Does the Minister's commitment to a humane divorce regime run out in section 5 which places the burden of encouraging couples to stay together on the applicant's solicitor? I can hardly think of a more unsuitable location for a discussion on the possibility of a reconciliation between warring couples than the cold formality of a solicitor's office. Yet the only requirement on a solicitor acting for an applicant for divorce is that they discuss with their client the possibility of seeking reconciliation or mediation rather than requiring them in the first instance to seek such help. The same applies to the solicitor for the respondent. Without wishing to impugn the integrity of an excellent legal profession, it is hardly in the financial interests of solicitors that couples do not proceed with their divorce. Who could reasonably be expected to talk a client out of paying a generous fee? Being aware of something rather than being encouraged or required to use it are two different things and, all things considered, I doubt that discussion is sufficient.

I have grave reservations about the concept of divorce as I remain to be convinced that this measure will improve the fabric of our society. Nevertheless, I am a democrat and I accept the will of the people.

Mr. Dukes

It is a little over 11 years since I instructed officials in the Department of Justice to begin work on preparing for a referendum on divorce and to prepare the legislation that would be required to give effect to its passing. I am sceptical about the degree to which we should allow our conduct to be influenced by opinion polls, but in 1986 it appeared there was a good prospect that people would vote to remove the ban on divorce. We had a debate which was not marked by any great manifestation of understanding or Christian charity and got a negative result.

What happened in the meantime? We have had 11 years during which time there was no jurisdiction for divorce and the constitutional ban remained in place. My information is that the same period was marked by an increasing incidence of marital breakdown even without a divorce jurisdiction and the alleged incitement to marital breakdown constituted by the existence of a divorce jurisdiction. We did not succeed in what we tried to do in 1986 and since then we have had a further 11 years of dealing with problems that have caused a great deal of pain and emotional suffering for many people, whether they were adults in relationships that had broken down, children of relationships that had broken down or other people witness to these painful situations. A great many people suffer in such situations.

The opponents of the referendum in 1986 succeeded in dragging out the agony for many people for a further 11 years. They also ensured that during that period more and more people found themselves in situations where they did not have the type of redress which they believed the law and the Constitution should give them. We have delayed and denied that legal and constitutional remedy for 11 years. Although I am pleased with the result of the recent referendum, I am sad and angry at the extra suffering and pain we have visited on so many people during that period. I am not only referring to Members of this House but to many others outside.

There were many moments of the last campaign that we will remember although we probably would prefer to forget them. I am among a group of people who were in favour of the measure then proposed and who were described as wife-swapping sodomites by a very Christain lady who took a different view although she did not apply any description to women who favoured divorce. That illustrates a certain lack of understanding of human emotions, maybe even human sexuality, that was a large part of the problem we have had here for so many years and it certainly had little to do with compassion or Christian charity.

Happily those 11 intervening years have not been entirely wasted. Within that period we have had, most notably, the Judicial Separation and Family Law Reform Act 1989, an Act of which I am particularly proud. My party colleague, Deputy Shatter, was the main inspiration behind it, and the Front Bench of my party at the time persuaded the Government of the day to take it on. Deputy Shatter and my colleagues sat on a special committee and prevented that Government from emasculating the Bill. It took a lot of parliamentary foot-work and finesse to ensure it was not emasculated by the then Government. The value of that Bill is eloquently illustrated in many of the provisions in the Bill before us. Indeed its value has been admitted and accepted by very many people in the past couple of years, even by those who, in conscience opposed divorce and others who, without a great deal of charity, also opposed divorce.

We have had to deal with many other problems. Apart from the principle of divorce in 1986, a great many other problems were properly highlighted. There were problems in succession rights of spouses and children, pension rights, social welfare rights and the treatment of divorced spouses for social welfare purposes. There were problems and questions in regard to the disposition of property between parties to a marriage, others in relation to mediation, counselling, taxation and a great many more. I have to admit it was something of an eye opener, in the course of the recent referendum debate, to discover that a number of those who spoke about problems that would arise from divorce, in particular those related to succession, appeared to have paid no attention whatever to what had been done in the meantime to address those problems.

All of those problems raised in 1986, the subject of debate ever since, either have been or are being addressed. Many of them have been dealt with by the Judicial Separation and Family Law Reform Act, 1989 and in various finance Acts passed in the meantime. The Family Law Act of 1995 dealt with a great many of the issues raised, as did the Maintenance Act of 1994 and that just mentioned by Deputy Kenneally, the Court and Court Officers Act 1995.

It would be silly to pretend it was not until 1996 that we had a sudden spurt of wisdom, a sudden rush of blood to the head, that made it possible for us to deal with all those problems. That is certainly not the case. All the issues raised in 1986, in 1995 and in the intervening period have been honestly and forth-rightly addressed in the Acts to which I have referred, introduced by various Governments. One or two of those Governments did precious little about any of the problems. Indeed one party in Opposition did nothing at all when in Government, to address any of those problems. Its performance on this Bill will cast some doubt on the sincerity of its attachment to principles it claims to espouse.

It would be wrong to pretend all of those things had to wait until now to be resolved because that is not true. In 1986 and 1987 we could have dealt with the problems of succession. It was not beyond our abilities at that time to deal with pension rights — as we have done in the intervening period — to deal with property orders or any of the other issues requiring attention. It is prefectly reasonable to suppose all of these issues could have been dealt with either in the period between holding a referendum in 1986 and the passage of a divorce Bill later that year, or earlier the following year, on in the period between the enactment of such a Bill and the implementation of its provisions. It is simply untenable to say these issues could not have been dealt with 11 years ago. That makes me even more unhappy and sad because we have unnecessarily visited delay, uncertainty and suffering on so many people. The people who brought those circumstances about have nothing of which to be proud.

I was astonished a few moments ago to hear Deputy Kenneally claim that some of the measures in this Bill dealing with a number of the problems discussed in the course of this divorce campaign should be regarded as concessions the Minister has had to make which will complicate the work of the courts. That is utterly dishonest. I would have more respect for Deputy Kenneally had he said here today that he is utterly and unalterably opposed to divorce and nothing we can say will make him change his mind. To claim that provisions of this Bill designed to meet real life problems, or allow for our courts to deal with the multitude of different circumstances they are bound to meet in the course of dealing with these cases, will complicate life for the courts and present that as a criticism of this Bill is absolute, sheer hypocrisy and intellectual bankruptcy.

If we have learned anything in the past 11 years, surely it must be that every individual is different, every marriage is different and, to the extent it is possible to do so, the legislation must allow the courts to recognise that. The legislation must allow the courts latitude to deal with the infinity of different circumstances which will be brought before them. God knows, we have sufficient problems with which to deal. In the past week a number of my colleagues in this House, sometimes in the context of this Bill, disquiet me a great deal, when they suggested that in current events we are now seeing more consequences of the liberal agenda. This liberal agenda, so criticised over the past 11 years is being blamed for what appears to be a rising incidence of armed crime, drug addiction, and the emergence of a certain type of vigilantism. It appears the people who opposed this measure, who showed themselves very resourceful in the kinds of arguments they used — often not very honest — having lost this issue, now attack from another front, suggesting that this Bill is another part of this liberal agenda that will bring dreadful consequences in its wake.

I was not only disappointed but appalled to hear Deputy Kenneally claim that divorce was touted as a panacea. In the quietness and tranquility of his mind he should ask himself if he really believes that. The Minister of State, Deputy McManus, eloquently made the point that nobody who argued in favour of the measure we have taken, passed by the people in the referendum, and who argues in favour of this Bill, likes the idea of divorce or considers it is anything like a panacea. Deivorce does not cure anything, it provides a legal remedy for a situation. I have every reason to believe that Deputy Kenneally wants to be honest because I respect the Opposition. If he sits down and quietly thinks about it, he will understand the nonsense of what he said. His claim is the most grotesque caricature of the case in favour of divorce that could be uttered. Claiming that under the Bill divorce will be available for everybody as long as they have £10,000 is the type of scaremongering that bedevils far too much political debate.

During the past three years the Minister substantially increased the provision for legal aid, bearing in mind that people will seek the remedy offered by the Bill who will not be able to afford to pay for what they are seeking and who will go to the Free Legal Aid Board. It is idle, dishonest and unworthy of the Deputy to pretend that is not open to them.

Mr. Kenneally

I did not pretend that is not open to them. How long will they have to wait to settle their cases?

Mr. Dukes

We all rail against the cost of court proceedings, but as Members we have a duty to legislate and we should do so without the hyperbole and distortion we hear too often in this Chamber. It costs money to have a court system. Irrespective of whether we are talking about divorce legislation, criminal law or anything else, there is no way this House can in any way replace that system. We must have courts to administer our law and, thankfully, it is incumbent on us to have them by virtue of our Constitution. Having courts costs money. Most people would expect to spend most of their lives without ever seeing the inside of a court and would not be capable of representing themselves properly or with justice in a court room. We need advocates in court to make a case on our behalf and that costs money as well. It is an idle statement to pretend that because court proceedings cost money there is something inherently wrong with them and that is of no help to the people on whose behalf we are legislating.

Apart from all the other provisions in the Bill, I am delighted the provision in section 33, dealing with the powers of court to restrain an individual from attempting to prevent or limit the relief which a court would otherwise be able to grant under various orders, is included. It is a useful and wise provision. Likewise the provisions in section 35, dealing with the exercise of jurisdiction by the courts in relation to divorce, have been properly and prudently included. Section 36 provides for notice to be given and I am glad that matter is dealt with in the Bill. Although it is a reflection of the nature of some of the problems with which we are dealing. I am glad section 37 is included. That section provides that the court in making an order for the grant of a decree of divorce may declare either of the spouses concerned to be unfit to have custody of any children of the family. It is sad that we must make that provision because, irrespective of whatever difficulties there may be, it is not a situation in which we would like to see the children of any marriage, but it is wise and proper to make that provision. None of us political practitioners would have to go very far to find situations where that provision might well be extremely relevant.

I hope the debate on this Bill will put a fitting end to what has been a very divisive period of 11 years which, I repeat, has unnecessarily prolonged pain, suffering and distress for far too many people.

Ms. F. Fitzgerald

I welcome the opportunity to make some brief comments on the Bill I congratulate the Minister, Deputy Taylor, and his staff for the extraordinarily hard work and commitment they have shown to the Bill over a long period. The Bill remains true to the spirit of what was said and promised to the people during the election campaign. It is extremely important that it stays true to it and, as the Minister of State, Deputy McManus, said, that we keep faith with the electorate. That has been done in this comprehensive legislation which covers many of the issues of great concern to people expressed during the campaign. It is important that it does this in such a careful way.

I agree with Deputy Dukes's point about the major suffering caused to people. Marital breakdown is a reality and the Bill reflects that. It analyses, accepts and deals with it. It is a different issue to support healthy marriages and the family, which the Government has a commitment to do. It has shown that commitment by setting up the Commission on the Family and the Joint Committee on the Family. There is a good deal of work to be done in reforming our justice system, one which has creaked over many years and the reform of which has been left far too late. For this we are paying a very high price. There is no doubt that this Bill will put demands on that system and I urge the Minister to ensure he gets the necessary resources so that couples will not face inordinate costs and delays in seeking justice and having access to the courts. That is a serious problem.

This carefully framed legislation reflects a culture that recognises diversity, respects the rights of minorities and is pluralist in its approach. As legislators we should support it as that is the way forward. We often look at the past through rose tinted glasses and forget the inequalities children, women and families faced over many years. A great many supportive services need to be put in place and I hope we can focus on those in the years ahead.

Minister for Equality and Law Reform (Mr. Taylor)

I thank all the Deputies who addressed the House during the debate and I greatly appreciate the general welcome they gave to the Bill. A number of issues were raised by Deputies. I do not propose to cover all of them because they will be debated more fully on Committee Stage, but I would like to comment on a number of them.

Deputy Woods referred to his party's five-year plan to deal with the consequences of marital breakdown, with particular reference to children. At the time of its publication I welcomed it and undertook to examine it, and that is being done. Deputy Woods will acknowledge that in the context of providing for divorce the Government has put in place a range of legislative and administrative measures to deal with the consequences of marital breakdown. In particular the Government's commitment to supporting the family is seen in its decision to establish the Commission on the Family whose task is to analyse the needs and priorities of families in the light of changing socio-economic circumstances. As a Government, we are committed to supporting the institution of the family, and we are willing to take the steps necessary to give effect to this commitment.

The welfare of children whose parents experience the trauma of marriage breakdown and who subsequently institute divorce proceedings is a fundamental concern to be considered in the context of the introduction of divorce legislation. The civil law in relation to children has been updated and developed on a systematic basis in recent years. We have a body of law comparable with the best in other countries. Important provisions in relation to children have been provided for in the Family Law (Maintenance of Spouses and Children) Act, 1976, the Family Law (protection of Spouses and Children) Act, 1981, the Status of Children Act, 1987, the Judicial Separation Act and Family Law Reform Act, 1989, Child Abduction and Enforcement of Custody Orders Act, 1981 and other legislation. In addition, as I already indicated to the House, it is my intention to bring forward in the near future proposals to amend aspects of the law on guardianship of children.

The civil legal aid system has been substantially improved, extended and expanded. At the beginning of 1994 there were 16 full-time and 19 part-time law centres throughout the country. There are now 26 full-time law centres and, in addition, 17 part-time law centres, a total of 43 centres in all. The numbers of staff serving with the board has increased from 99 to 225 in the period from 1993 to date. Notwithstanding the increased demand on the board's services, there has been a continuing reduction in the waiting time at the board's law centres.

Likewise, in the area of family mediation and marriage counselling, major extensions and expansions have occurred. In 1996 I am providing £300,000 for family mediation, more than double the amount allocated in 1993. In the area of marriage counselling, I acknowledge that work of immense value is done by the many voluntary organisations. I secured funding of £750,000 for those organisations in 1994 and again in 1995, which represented an increase of 150 per cent over previous years. I am glad that this allocation is being increased further in 1996 to £900,000.

There was a reference to the alleged ambiguity of wording. Someone said that the wording contains language that will ultimately have to be interpreted by the courts before absolute clarity with regard to divorce criteria is obtained. Whatever wording was inserted in the Constitution, court interpretation would inevitably have to come into the reckoning. If no wording was inserted, court interpretation of primary legislation would be equally relevant. The courts have a role to play in interpreting these matters, that is one of their functions under the Constitution, and we should have confidence in the Judiciary to interpret the language of the amendment in a fair and pragmatic manner. I thank all. Deputies for their contributions and look forward to further constructive debate on Committee Stage.

Question put and agreed to.