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Dáil Éireann debate -
Wednesday, 25 Sep 1996

Vol. 469 No. 1

Family Law (Divorce) Bill, 1996: Report and Final Stages.

Bill recommitted in respect of amendment No. 1.

Minister for Equality and Law Reform (Mr. Taylor)

I move amendment No. 1:

In page 8, between lines 22 and 23, to insert the following:

"3.—Section 14 (2) of the Censorship of Publications Act, 1929, is hereby repealed.".

The effect of this amendment is to repeal section 14 (2) of the Censorship of Publications Act, 1929, the terms of which prohibit the publication of reports of divorce, separation and nullity cases except to the extent that they involve disclosure of, inter alia, the names, addresses and occupations of parties and witnesses to those proceedings. Because the in camera rule applies to those proceedings they cannot, in any event, be reported. The printing of law reports is, of course, not prohibited. In practice the names of the parties or addresses and other distinguishing features are erased from all reports as well as unreported judgments. Publication of the details of a case which has been heard in camera constitutes contempt. I am satisfied the law which should be seen to operate in the family law area is the one provided for under the in camera rules. This is the rule which will apply specifically to divorce proceedings by virtue of section 34 (5). This amendment will help to make the position even more clear.

Dr. Woods

We have no objection to this amendment. Effectively it is an anachronism now because the in camera rule applies and only limited details can be published. This is essentially tidying up legislation which, as the Minister has said, was not discussed at any stage up to now. I had to go to the Library to find out the exact wording. Section 14 (2) of the Censorship of Publications Act, 1929, states:

It shall not be lawful to print or publish or cause or procure to be printed or published any report, statement, commentary or other matter of or in relation to any judicial proceedings for divorce, nullity of marriage, judicial separation, or restitution of conjugal rights save and except all or any of the following particulars of such proceedings, so far as the same can be printed and published without contravening any other subsection of this section, that is to say:—

(a) the names, addresses, and occupations of parties and wit-nesses,...

the judge, solicitors, a statement of the charges, and whatever. I agree with the Minister that this is a tidying up exercise.

Ms Keogh

The Minister has engaged in good housekeeping and I have no objection to this amendment.

Amendment agreed to.

Amendment reported.

Dr. Woods

I move amendment No. 2:

In page 8, between lines 27 and 28, to insert the following:

"4.—Section 32 of the Family Law Act, 1995, shall not apply to marriages solemnised between the 1st day of August and the 31st day of December, 1996.".

This is a debate we have had with the Minister previously. We have had argument and disagreement on this issue. From the outset there has been concern about the marriage notification procedure which is now obligatory. It is essential to give notice of marriage three months in advance of the date on which one intends to be married. There are two points here: there was no concern that before the provisions came into force on 1 August there was no explicit provision in the Act for the procedures for giving and receiving notification. Various legal authorities had expressed concern about that matter and the fact that it could lead to difficulties in the future. The Minister said he took the advice of the Attorney General who said that the Interpretation Act, 1937, could apply in this case and, therefore, there would be no reason to be unduly concerned. This point has not been generally agreed and there still remains some question of doubt. We cannot understand why the Minister leaves the issue in any doubt. There should be no doubt and it is not right to leave any marriage in a questionable situation. We suggest the Minister removes the doubt and takes on board our amendment or an amendment with slightly different wording.

Since all this argument and debate took place earlier this year, we have been informed that some 6,733 couples are to be married over those three months and have given notice. That number may have increased slightly because that information was given in July. Perhaps the Minister will tell us the final number which in any event is in the region of 7,000. When that figure is doubled, 14,000 people could be involved.

We have been informed by reports in the media since then that over 100 couples applied to the courts for exemptions. Will the Minister tell us the numbers who have applied for exemptions to date? We were also informed through the media that at least three couples were informed that the validity of their marriages is uncertain. That is a very serious matter. By exempting the first three months the Minister would deal both with the issue of people who were not sufficiently aware in the first instance and the lingering doubt which may exist from the long-term point of view in relation to marriages which take place within that three month period from 1 August to the end of October.

The notice placed in the newspapers made it clear that any person who intended to marry on 1 August 1996 must have given notification on or before 1 May 1996, and unless they obtain an exemption, any marriage which takes place in the State on or after 1 August 1996 will not be valid in civil law unless these requirements have been met. It is clear from various surveys that many people do not read the newspapers nowadays and certainly do not read all the notices. To a large extent, the Minister was depending on the various churches in each diocese to inform the people concerned of this requirement and, generally, that is what happened. There have been exceptions and people were not aware of the requirements on time. Obviously the exemptions applied for in courts would relate to some of those cases.

I ask the Minister to accept this amendment and remove all doubts in this area. Why be obstinate about it? Why leave people in doubt? Why not listen to the House on an occasion like this? The same points are being raised by both sides of the House. The result of the vote on Committee Stage was very close, 12-10. Some of the 12 who said they were not happy wanted the Minister to look again at this issue. Some Members on the Government side are concerned and are also asking questions. Concerns have also been expressed by Members on this side of the House and the evidence which has come to light since that time seems to confirm these concerns. The simple remedy to this problem is to exempt the three month period, and we have tabled an amendment in this respect to enable the Minister to tackle this issue.

The headline in an article in the Irish Independent on 27 August stated “No notice couples must wed again”. The Minister's press officer wrote to the newspaper advising them that people should not worry and that the Attorney General had given his assurances. However, this article stated:

Serveral couples who were married this month are not legally married in the eyes of the State because they failed to provide adequate notice of their intention to wed. It is believed letters have now been sent to at least three couples informing them that the validity of their marriages is uncertain under civil law because they married after new legislation came into effect on 1 August requiring three months notice which they had not given.

Some people have already experienced difficulties in this regard. In an article in the Irish Independent on 29 August a TD made allegations about the church's position in relation to such marriages. Apparently some of the people who performed these marriages felt they were valid and should not be affected. It was a Deputy from the Government side of the House who brought this matter to our attention during the latter days of August. What is the necessity for all this and why can the matter not be clarified once and for all so that there is no future doubt about it? Will the Minister accept the amendment and put the issue beyond doubt?

Mr. Taylor

As indicated on Committee Stage, the effect of section 32 of the Family Law Act, 1995, relating to notice of marriage, which came into effect on 1 August last is that unless special exemption has been obtained in accordance with the Act a marriage shall not be valied unless the parties give three months notice of their intention to marry. There has been a certain amount of comment both inside and outside the House on this provision, particularly as regards its application in respect of marriages during the months of August, September and October.

It was obviously not the intention of the 1995 Act that marriages could not take place in August, September and October 1996 and if it had been intended that persons could not marry during those months the legislation would have specifically provided for that. I wish to emphasise again what I said on the matter on Committee Stage. The presumption under rules of statutory interpretation is that the Oireachtas intended that couples be obliged to notify the registrar of their intention to marry and that the registrar should have the power to receive such notices prior to the commencement of section 32. The advice from the Attorney General is that the provisions of section 10 (1) (b) of the Interpretation Act, 1937, cover exactly the situation which arises in relation to those notices of marriage given prior to 1 August 1996.

The 1937 Act provision deals with a situation where an Act of the Oireachtas is expressed to come into operation on a day subsequent to the date of passing of such Act. It makes clear that if an Act confers a power, the exercise of which is necessary or expedient to enable that Act to have full force and effect immediately upon its coming into operation, such power may be exercised at any time after the passing of the Act. Consequently, on the basis of ordinary rules of statutory interpretation and by virtue of the provision of section 10 of the Interpretation Act the Attorney General's view is that prior to 1 August couples were authorised to notify registrars of marriage of their intention to marry and registrars had power to receive the notices so given. The view of the Attorney General, with which I agree, is that there is no necessity for amending legislation in this area.

It will be of interest to Deputies to know how section 32 has operated in practice. Since we last debated the issue on Committee Stage I have consulted with my colleague, the Minister for Health, who has responsibility for the office of the General Registrar of Marriages regarding the day-to-day operation of the notification requirement under the Act. He has informed me that up to 25 July last almost 7,000 notifications under section 32 had been received in respect of marriages to be solemnised in the months of August, September and October. This compares with an annual marriage rate of less than 16,000. He also informed me that while difficulties had been encountered in a number of isolated cases these were not specifically related to the provisions of the Act but were more of an administrative nature. Of the total number of notifications received to date, difficulties have been encountered in only 19 cases, seven of these cases have been resolved and the remaining 12 are currently under examination.

In reply to a parliamentary question on 25 July last my colleague, the Minister for Justice, also indicated that at that date 125 applications had been made to the courts under section 33 of the 1995 Act for exemption from the three months notice requirement under section 32 of the Act. She indicated that of those applications the court had granted exemptions in 98 cases and the remaining 27 cases were, at that time, waiting to be heard. Since then I have been given more up-to-date figures which I can give the House. The position in respect of applications for exemption prior to 1 August last is as follows: 149 applications were received, 138 were granted, none was refused, two were adjourned to other Circuit Courts and 11 were still to be heard. The position post 1 August last is as follows: 12 applications were carried forward, 112 applications were received, 93 of these applications were granted, six were refused, eight were transferred to other Circuit Courts and 25 are still to be heard.

Clearly the system is operating satisfactorily in practice and the exercise by the courts of jurisdiction under the Act is a further illustration that the provisions of sections 32 and 33 of the 1995 Act are sound. I am happy to assure the House that there are no legal or constitutional difficulties with the operation of sections 32 and 33 of the 1995 Act. The system of notification and exemption provided for under these sections is operating perfectly satisfactorily on the ground and there is no necessity for amending legislation in this area. Accordingly, I do not propose to accept the amendment.

Mr. Shatter

I wish to respond to what the Minister has said, given that I am one of the people who first raised what was perceived to be a difficulty in this area. I have always been of the view that what the Minister says in relation to notifications given prior to 1 August is open to two different legal interpretations. The interpretation given by the Minister is a valid interpretation, and my argument on that issue has always been that without a court decision there is still a matter of some legal uncertainty.

I accept the Minister's advice is from the Office of the Attorney General, but the office is not always correct. I assume the Minister acted on the advice of the Office of the Attorney General during each Stage of the Bill and I presumed the Minister brought forward all the amendments deemed necessary on Committee Stage. I am sure Members would have been informed if the office, when going through the Bill with a fine tooth comb before Committee Stage, had reached the conclusion that other amendments were required. However, the House is dealing with a plethora of amendments to other sections tabled by the Minister.

I am not criticising the Minister and I support the legislation. I am anxious that it be passed. The Office of the Attorney General and the departmental officials may have regarded it as the final version of the Bill, addressing all outstanding issues after Committee Stage, with the exception of a number of matters raised by Opposition Deputies which the Minister said he would reconsider. However, although it is being done properly and in good faith, amendments have been tabled to a series of sections which were not suggested previously.

I have a greater degree of unease about the Circuit Court exemptions — perhaps the Minister will confirm they are Circuit Court rather than High Court exemptions — to the notification requirement granted prior to 1 August than about the giving of notification. The Minister's statistic that 148 applications were received prior to 1 August and 138 were granted is interesting. The date 1 August is relevant because it is the date on which the Family Law Act came into force and I have a problem with the interpretation Act being relied on in this manner by the Circuit Court. It granted exemptions in circumstances where couples went before a Circuit Court judge in chambers and said they wanted the exemption and the judge wished to facilitate them. There were no contests, hearings or teasing out of the legal principles applicable between contesting parties.

The Family Law Act provided that the power conferred on the courts to exempt people from the notification requirement would come into operation when the Act was brought into force by ministerial order. The order brought the Act into operation on 1 August. There is express provision in the Act in terms of when it comes into operation. However, the interpretation Act was relied on to allow the courts to grant exemptions before 1 August. From memory, that provision in the interpretation Act is applicable save in so far as it is inconsistent with the wording of the Act to which it applies.

This appears difficult and technical but, while I have some reservations about notifications given prior to 1 August, once they were given three months before a marriage there is a good case to suggest that the validity of the marriages will be accepted, although an argument can be made on the other side. However, if 138 people are granted notification exemptions prior to 1 August and subsequently married on that basis. I have great difficulty accepting the view, even if the Circuit Court made the decision, that the exemptions are valid.

If some of the marriages of the 138 couples, who married pursuant to exemptions granted prior to 1 August, break down and there is a contest in the future, there is a real possibility that a court higher than the Circuit Court could declare the marriages null and void. There is a serious likelihood of this scenario and I am most uneasy about the manner in which we are dealing with this aspect. The people involved want to know if their marriages are valid. Perhaps the Minister could consider a solution to this matter in the Seanad. It is not unknown to include matters in legislation, even if they are considered unnecessary, to give people peace of mind. The Minister may consider such a move is unnecessary but another provision in the Bill is equally unnecessary.

Section 8 (2) provides that, for the avoidance of doubt, the grant of a decree of divorce shall not affect the right of the father and mother of an infant under section 6 of the Guardianship of Infants Act, 1964, to be a guardian of the infant jointly. There was never a doubt that, if a decree of divorce was granted, it could in any way affect the guardianship rights of a husband and wife. This is clear, but for comfort because people were concerned about the impact of divorce, section 8 (2), although unnecessary, is included in the Bill.

The Minister is dealing with the Bill on the basis of advice received but I ask him to consider including a similar provision to section 8 (2) when the legislation is before the Seanad. It could state that, for the avoidance of doubt, a notification to marry given prior to 1 August, or an exemption granted by the court of the need for such notification given prior to 1 August, is regarded as valid. This would ensure a marriage cannot be impugned on the basis that either the notification was given or an exemption was granted prior to 1 August. If the guardians of children are entitled to reassurance that the granting of a divorce will not affect their guardianship rights, couples who married during the summer pursuant to procedures put in place in recent months are entitled to equal assurance that their marriages are valid. They should be facilitated in that regard.

A simple mechanism could be used to deal with this matter which does not involve going against the advice of the Attorney General or loss of face. Nobody is trying to score political points. It addresses an issue which could prove problematic in the future. It will be a cause of litigation in the future and such a move should be taken if only to avoid unnecessary litigation. It may be the case that, at the end of litigation between a couple whose marriage has broken down, the Attorney General's view on all the issues will be proved right. However, why should a couple be put through the difficulty of dealing with this matter in the courts? I urge the Minister to consider the solution he applied in relation to guardianship in section 8.

An Ceann Comhairle

Deputy Shatter has posed some important questions. The House is dealing with Report Stage of the Bill and this precludes Members other than the proposer of the amendment speaking a second time. In this instance the amendment's proposer is Deputy Woods. However, if the Minister desires and with the permission of the House, I would not oppose an intervention from him for information purposes only. This is on the understanding that it would not be construed as a second speech in the circumstances, which would be out of order. Does the Minister wish to intervene briefly?

Mr. Taylor

I have nothing further to add to my statement.

Dr. Woods

Will the Minister outline why the six applications were refused as this aspect is outstanding? He said six couples were refused after 1 August and although the Minister's information was clear, he did not state on what grounds they were refused.

An Ceann Comhairle

I sought to facilitate the House in respect of seeking information. The Minister has intimated he does not wish to say anything further.

Mr. Taylor

I do not mind responding to the Deputy's query.

An Ceann Comhairle

That is fine.

Mr. Taylor

I do not have specific information regarding the grounds on which they were refused. In the particular circumstances surrounding that small number of cases, I presume the court considered there was not adequate justification to allow a notice period below the three month period provided for in the Act. That is pure supposition on my part. I do not have actual information on the matter.

Dr. Woods

The Minister gave us a good deal of information on up-to-date statistics which reveal that in the period prior to and after 1 August 261 couples applied for exemptions. That number may increase. We wanted to avoid circumstances in which large numbers of people would have to apply to the courts for exemptions.

Serious questions arise about the six refusals. If it is the case that the people involved did not move quickly enough or were not careful enough when dealing with the matter, they should not have been refused exemptions. We do not want the legislation to have that type of effect. Perhaps the Minister will inform us at a later stage why those six cases were refused exemptions. This has happened purely as a result of the 1995 legislation passed in this House.

We tabled this amendment as one way of dealing with the matter and Deputy Shatter proposed another. I do not mind which approach the Minister adopts, or even if he takes another approach. I merely want him to solve the problem.

I fall into the same school as Deputy Shatter regarding Attorneys General. While the advice of Attorneys General has been generally sound and well respected over the years, nevertheless lawyers often differ and their differences tend to end up in court where a decision is made at a high level. We do not want that to happen in this case. Like the Minister, I am an ordinary simple person and I do not want to create difficulties for people. Why not use one of these remedies and put the matter beyond doubt? As Deputy Shatter stated in regard to section 8 (2), for the avoidance of doubt these matters are regarded as valid. Is it a case of pride or that once something is committed to paper it takes on a life of its own and cannot be changed? This is where changes should be made.

While we welcome the advice of the Attorney General, Members are practical and adopted a practical approach to this matter on Committee Stage. We do not want to create difficulties in this area. The notification rule is a new measure and of course some people will question why it is necessary to give three months notice. We had a debate on that some time ago.

The Minister is not disposed to accept this amendment. He has taken a hard stand and his comments have been brief. Perhaps he is in a rush to go somewhere. The Ceann Comhairle offered him an opportunity to give a further explanation but he did not accept. This matter should be resolved by accepting a simple amendment, following which it will not be necessary to ask questions. Perhaps some people will be critical of the change, but the Minister changed many items in the Bill today. I am glad I was here late last night when he submitted those amendments. Since the committee system was set up it appears to be the practice to submit ministerial amendments late at night. Perhaps it is an attempt at one-upmanship or is it a case of not dealing with matters on time? A further amendment was submitted this morning. The Minister has a long list of amendments he wants to make on the advice of the Attorney General's office. Why not make the little change we propose and put this matter beyond doubt?

I agree with Deputy Shatter that the Attorney General may be correct in most cases, but there can be doubt and I do not want that to be the case. The Minister should note the concerns expressed by Members from both sides on Committee Stage. He has stated that a large number of people will have to go to court, but if the date were put back to 31 December, as suggested by us, the matter would be resolved. If he is not disposed to doing that he should accept Deputy Shatter's suggestion and state that, for the avoidance of doubt, these cases will be regarded as valid. I merely want the Minister to do something about the matter. If he fails to do something now, will he at least reconsider the matter before the Bill is taken in the Seanad?

Amendment put.

The Dáil divided: Tá, 49; Níl, 61.

Tá

Níl

Tellers: Tá, Deputies D. Ahern and Callely; Níl, Deputies J. Higgins and B. Fitzgerald.

Amendment declared lost.

Dr. Woods

I move amendment No. 3:

In page 9, between lines 5 and 6, to insert the following:

"(3) Subsequent to a grant of divorce, or of an order for judicial separation made under the Judicial Separation and Family Law Reform Act, 1989 if a non-custodial parent does not have or is not exercising a right of access to any child of the family, the parents of the non-custodial parent may apply to the court on notice to the custodial parent for an order granting a right of access to the child concerned for the purpose of maintaining the child's relationships with his or her extended family and the court may where it thinks appropriate grant such access having regard to the provisions of the Act of 1964.

(4) Where parents of the non-custodial parent are dead or do not reside in this jurisdiction or are otherwise unable to make application under subsection (3) of this section, such application may be made by a brother or sister of the non-custodial parent.".

This amendment relates to the parents of the non-custodial parent and seeks to provide that they may apply to the court on notice to the custodial parent for an order granting a right of access to the child concerned. The purpose of the amendment is to provide for the extended family and extended relationships in our society. We have a good reputation, experience and tradition in the area of the extended family where brothers, sisters, aunts, uncles and grandparents take an interest in the family at large. When difficulties arise, such as marriage breakdown, where the non-custodial parent is not given custoday of the child because he or she is on drugs or for some other good reason, the court, if it considers it appropriate, should be able to give a right of access to the parents of the non-custodial parent, the grandparents.

There is much talk about the protection of children from drugs. We have heard a great deal in the House about meetings taking place in particular communities in Dublin where heroin is rampant. I am pleased that rehabilitative and other measures taken to address that problem in my community are working well. One of the reasons for that is the young people affected tend to be older, ranging in age from 17 to 22. In some communities young children ranging in age from 13 to 15 are affected by drugs and the difficulties in those areas are much greater. We have seen television broadcasts of marches against drugs, but the television media missed one of biggest marches that took place on the north side of Dublin the night before last. I attended that meeting but not the march that followed it. In that area many of those affected by drugs are very young and many come from marriages that have broken down.

The role of the grandparents in those circumstances is particularly important and that is not adequately recognised. I am sure the report that will be published by the Commission on the Family — an interim report is due at the end of October — will highlight the role of the grandparents and the extended family in our society as one of our great traditions and strengths. Since we value the protection of children and are greatly concerned about their development and given that caring, loving and sharing starts at the cradle and continues through the teenage years into adulthood, we must recognise that the grandparents on both sides can play a vital role. Especially when a child feels isolated, bewildered and lacks self-esteem where there is conflict in a marriage. If research on children from broken marriages and on children taking drugs is analysed, the lack of self esteem repeatedly occurs as an important factor. The way to overcome this is to nurture, develop and support children. Many grandparents do this. It is unrecognised but, nevertheless it is a very important contribution.

We want to allow the courts to give a right of access to the parents of the non custodial parent, not necessarily as a guardian and not to interfere, but to be in a position to maintain the relationships. We are referring to a right of access which the court would consider to be appropriate. At present it is exceptional to allow for a custody order without guardianship. However, we are not referring to guardianship but to the normal relations which should be available to children and to building their self esteem which is so important to them in their development.

It is for these reasons that we propose this amendment. It is an important issue to consider at this stage, especially given the enactment of this legislation. The provisions of the amendment are worth-while. It will be for the courts to make judgements in the different circumstances which arise.

Ms Keogh

I support the amendment. There are fears that divorce will affect the family unit. When considering the family unit we should think of the extended family, not just the nuclear family. My children have the great benefit of having their grandparents, my parents, living with them. It is wonderful for my parents. It is a maintenance of the extended family unit. There is great fear among many people that, in the event of divorce, grandparents especially will lose touch with their grandchildren, something none of us wants.

When responding to this amendment on Committee Stage the Minister rightly acknowledged that it was desirable that grandparents, aunts or uncles should be able to apply to the court in their own right for access to a child. However, he went on to say that the circumstances were difficult in this case and the matter could perhaps be dealt with within the framework of the proposed Children Bill.

I am disappointed he could not deal with the issue now. It is pertinent to the issue of divorce and should be included within the framework of this Bill. Will the Minister reconsider his decision? It will be of benefit to children to ensure that their relatives, especially their grandparents, will have access as a right. This is not a question of guardianship; it is concerned with access.

Mr. Taylor

The effect of the amendment would be to allow the parents, a brother or sister of a separated or divorced person in certain circumstances to apply to the court for access to that person's child. The advice available to me is that since the constitutional rights of parents are wide ranging, several matters would require to be considered before provision of the kind proposed in this amendment could be acceptable.

The difficulty is that situations could arise whereby third parties would have the right to interfere in the affairs of a family unit recognised and protected by the Constitution. However, where what is proposed is a relatively narrow right to apply for access only, a right that would not extend to other aspects of a child's welfare, such as custody, schooling and so on, the difficulties may be diminished.

The legal issues are, nevertheless, being further examined and I am confident it may be possible to devise provisions which will contain appropriate safeguards and which will prove to be legally sound. I am not in a position to bring forward those provisions in the context of this Bill, but I propose to do so, if found to be feasible, in the context of the proposed Children Bill. I regret, therefore, that I am unable to accept the amendment now but I assure the Deputy I am well disposed to the principle of the amendment and intend to do what I can about it in the not too distant future.

Dr. Woods

I thank the Minister for his comments but regret he is not in a position to take the limited action proposed by this amendment. It is directly relevant to this legislation and is a very narrow and restricted form of access. The point is well understood, but it is unfortunate and regrettable that it is not possible to include it in this legislation.

I welcome the Minister's comments about including such a measure in the proposed Children Bill. However, given its relevance to this legislation it would be preferable to deal with it here. It would reassure the public. When a referendum was decided upon we said if the people voted in favour of a divorce jurisdiction we would introduce safeguards with the necessary legislation. It would, therefore, be more reassuring to have these safeguards included in this legislation, rather than saying, as we appear to repeatedly say, that it will be included with other measures. We would keep faith with the public in a more direct and honest way by introducing these measures in conjunction with the legislation providing for divorce. While recognising the Minister's sympathetic approach, in this respect we shall have to await the forthcoming Children Bill.

An Ceann Comhairle

How stands the Deputy's amendment?

Dr. Woods

In view of what the Minister has said, I shall not press it.

Amendment, by leave, withdrawn.

Amendment No. 4 not moved.

Dr. Woods

Thank you, Sir, for your letter informing me that my amendment No. 4 might give rise to a potential charge on the Revenue. I note that a later amendment, similar in intent, in the name of Deputy Keogh will afford us an opportunity to discuss this matter.

An Ceann Comhairle

We proceed to amendment No. 5. I observe that amendments Nos. 6, 7, 8 and 10 to 13, inclusive, are related and can be discussed together if that is satisfactory. Agreed.

Dr. Woods

I move amendment No. 5:

In page 9, line 36, after "matter" to insert "and by a certificate signed by a person qualified to help to effect a reconciliation between the spouses, that the applicant has attended that person and has discussed the possibility of a reconciliation, and where appropriate a certificate signed by a person qualified to provide a mediation service, that the applicant has discussed with that person the possibility of engaging in mediation to help effect a separation (if the spouses are not separated) or a divorce on a basis agreed between the applicant and the other spouse.".

This series of amendments deals with counselling and mediation to which we are very strongly committed. We engaged in much research on the constitutional amendments put to the electorate by way of referendum. Even before then we engaged in much research and constantly found that counselling and mediation were considered crucial. While aware that the previous and present Governments invested greater funds for this purpose our difficulty arises from beginning from such a low base and moving suddenly into a divorce jurisdiction when events will happen quickly and large numbers of cases arise. We are aware of that fact from the Legal Aid Board and those already legally separated who have indicated a wish to engage in divorce proceedings.

The requirement for counselling and mediation incorporated in the Bill is of a token nature only. In present circumstances a solicitor must merely inform a couple of the names of counsellors, presumably by showing them a list. Other amendments have been tabled in relation to the preparation of such a list. We contend that that requirement is much too important and valuable not to be mandatory. Therefore, we propose that an obligation be placed on spouses in divorce proceedings to attend a counsellor and subsequently to present to their solicitor a certificate testifying that they have engaged in discussions and resorted to counselling before continuing with divorce proceedings.

My amendments place an obligation on spouses in divorce proceedings to authenticate attendance with a counsellor to discuss the possibility of reconciliation. In the event of such consultation proving unsuccessful, these amendments would place an obligation on couples to attend mediation discussions to help resolve disputes and conflicts arising from marital breakdown, separation or divorce. We regard this requirement as very much better than that incorporated in the Bill. While the Minister may well reply that this would mean that everybody must resort to counselling, that is exactly what we recommend. It is the advised course of action worldwide.

The whole point of insisting on a four-year waiting period and the other clauses in the constitutional amendment was to allow for a lengthy interval between the initiation of conflict and finding a possible resolution. During this time it is thought that a good deal of the bitterness and anger surrounding the conflict may well have waned, allowing couples an opportunity to reevaluate their overall position. To allow this take place, we contend the Bill must stipulate a requirement on couples to engage in counselling. Surveys undertaken over many years have demonstrated that a substantial proportion of couples who remarried later regretted the breakdown of their first marriage, feeling that insufficient had been done to attempt a reconciliation. The constitutional requirement ensures a four-year interval, backed up by our requirement for counselling and, if necessary, mediation.

In Australia the Family Law Act, 1975 established mandatory court-annexed counselling and concilation services, particularly for children and in the case of property and other matters in dispute. It will clearly be seen that there is a precedent for compulsory counselling and conciliation. It was argued in Australia that such services should be provided separately from the courts. Our amendments would ensure that. In these cases there is always a question as to whether such counselling should be insisted upon. All our research prior to the referendum indicated that counselling is vital. Mediation services are particularly valuable but under the Bill they are only a token and we do not want that. Amendment No. 5 adds a requirement that the solicitor must receive a certificate to make sure that the counselling actually takes place. I know it is not possible to ensure that the counselling is good or that those involved participate in the best possible way, but we can at least try to ensure in the legislation it takes place and see how we manage in practice after that.

We all have the same objectives. We want to save any marriages that can be saved and to bring about reconciliation where this can be done. We want to see mediation rather than conflict. Parental conflict causes the greatest damage to children. In our survey on world-wide research on this problem, the need to avoid conflict between parents arose time and again. If parents are to separate or divorce, so be it, but everything possible must be done to ensure that conflict is reduced.

Mediation is one of the processes which reduces conflict. Counselling is a very important process and if a couple decide to separate mediation becomes important. If you can reduce conflict you have some chance of ensuring that the children will have a more normal upbringing. If this is not done, children suffer more. This is the area people were most worried about. I said before the referendum that the result would be very close and the Minister knows that. I said that because people worry about the children. Basically we have a good family structure and many people come back to Ireland to rear their children. This measure would be helpful to children and that is why we propose it.

Ms Keogh

I have mixed views about the amendments we are discussing but, on balance it is right to support them. One could talk about taking a horse to water and not making it drink. The objective of these amendments is not to insert a degree of compulsion but to ensure that mediation is part of the process as far as possible. That will come about more easily if the route Deputy Woods has suggested is followed.

Part of the debate we had on the referendum and the Bill centred around the importance of counselling and mediation, not only for the parties directly involved, but for children. If we are to accept that mediation is part of the process, people should be able to embark upon such a process. That would improve the Bill and the signals we send out about the importance of this legislation.

When we discussed this before the referendum and on the Bill, we all considered that the decision of the people on divorce was very close. I do not think Irish society is deeply divided on this issue. I have said before and I repeat that I believe for many of us the decision was taken on balance. We are very concerned about the family and do not want to do anything to disrupt the family unit but we want to show compassion and understanding for those whose marriages have irretrievably broken down. We also want to recognise reality, so I do not see any difficulty whatsoever in adopting what might be described as a very conservative approach to this.

We need to approach this issue in the most reasonable manner possible and I do not think that what Deputy Woods is looking for is unreasonable. I do not accept that it must be compulsory, but we must go as far as possible in ensuring that people do not embark upon this process lightly. The Minister embarked on very conservative methodology on the divorce referendum itself, one which is more conservative than the one I would have chosen, but he should continue along that line by accepting the amendments being put forward here.

I proposed a subsequent amendment on the regulation of mediation counselling services. We need to ensure that people are absolutely confident about the whole process. For that reason, even though as I say it might be going a little further than might appear necessary, we should be open minded when looking at these amendments.

Mr. Taylor

These amendments are replicas of amendments which were discussed in the Select Committee on Legislation and Security. As I stated on Committee Stage, the amendments appear to serve no particular purpose in a context in which counselling and mediation, as in the case under the Bill, is envisaged as a process to be engaged in by parties on a voluntary basis. I remain of the view that to require the provision of certificates from counsellors and mediators, as these amendments propose, would only have relevance in circumstances where parties are compelled to undergo counselling to effect a reconciliation and mediation. I agree that ever effort should be made by parties to effect a reconciliation and, failing that, to engage in mediation to settle terms of separation and divorce. These amendments, however, do not contribute to the reconciliation and mediation process but simply add an unnecessary process of certification. Accordingly, with regret, I oppose the amendments.

Dr. Woods

It is meaningless simply to ask a solicitor to ensure that he or she informs people about counselling and counsellors and give them a list. That is merely a token. We want to ensure that counselling takes place. It is not possible to ensure the behaviour of people when they go to counselling, that is a matter for themselves, but at least as part of the process leading to divorce people should participate in counselling. is a matter for themselves, but at least as part of the process leading to divorce people should participate in counselling. For that reason, we wish to create an obligation to attend a counselling session.

There is a difference of opinion on this issue. What the Minister has suggested in the Bill is mere tokenism and that will be seen in time. We suggest that there be a procedure which provides for counselling.

Amendment put.

The Dáil divided: Tá, 49; Níl, 60.

Tá

Níl

Tellers: Tá, Deputies D. Ahern and Callely; Níl, Deputies J. Higgins and B. Fitzgerald.

Amendment declared lost.

Amendment Nos. 6 to 8, inclusive, not moved.

Ms Keogh

I move amendment No. 9:

In page 9, after line 47, to insert the following:

"(6) The Minister may make regulations providing for the establishment of a register of persons qualified to help to effect a reconciliation between spouses who have become estranged or to provide a mediation service for spouses who have become estranged.".

The issue of who is qualified in the area of mediation and counselling is extremely important. The Bill before us places great emphasis on mediation and reconciliation but there is not any provision made for the regulation of those professions. I ask the Minister to recognise this and make regulations in this area. Obviously, in the long-term, more attention will have to be paid to the establishment of recognised training courses for mediators.

In his reply to the proposal on Committee Stage the Minister said it would be wrong to think he is in a position to regulate the certification of persons as counsellors or mediators and that the question of who is best qualified to act as a counsellor is best answered by the organisations employing such persons. Unfortunately, the Minister is missing the point I am trying to make. It is extremely important that the type of service provided is appropriate. I have some knowledge of this area because in the distant past I was a career guidance counsellor and I know the problems that can arise if inappropriate guidance is given. That is something to which any professional will admit, particularly those in the area of mediation. It has been pointed out to me by one particular organisation that in some areas counselling is directed at one individual, but there is a danger that somebody operating under that ethic will impose it in mediation cases where it is not appropriate.

I realise the Minister may have misgivings about the appropriateness of his Department becoming involved in this area but the fact that large sums of money are channelled through his Department to various agencies underlines his responsibility in this regard. To some extent we are only beginning to recognise the importance of mediation facilities but the Minister should deem it appropriate that regulations be put in place.

I was disappointed with the Minister's response on Committee Stage. I sympathise with his reluctance in this regard but as it is his responsibility to fund agencies it is not appropriate for him to simply say that the organisations employing these persons are best suited to decide whether the mediator or counsellor is the right person for the job. There should be a method of regulation to ensure that, in the first instance, the appropriate agencies are given mediation and counselling facilities. If, at this late stage, the Minister is unwilling or unable to do anything about this issue, my party will table a similar amendment in the Seanad. I ask the Minister to reconsider the proposal.

We have already had a debate on the importance of counselling in general and we have voted on an amendment which seeks to ensure that people go through that process, but once they are engaged in that process it is vital that it is appropriate to their particular circumstances. I ask the Minister to accept responsibility for this area. If he does not agree it is appropriate to his Department, I ask him to ensure somebody takes responsibility for this area as it is too important to be left to the organisations involved. Regulatory bodies exist in other areas and there is recognition of the expertise of professionals. It is important, therefore, to have a similar attitude with regard to this area. I ask the Minister to reconsider the matter and come back with a more positive response than we had on Committee Stage.

Mr. Taylor

The amendment would allow the Minister for Equality and Law Reform to make regulations establishing a register of persons qualified in the fields of counselling and mediation. In effect, it suggests that I have a role in the regulation and certification of persons as counsellors or mediators. While my Department has certain responsibilities which relate to the funding of marriage counselling organisations as well as the funding and administration of the family mediation service, I am unable to agree that it is or should be a function of my Department to establish a national register of persons who are deemed to be properly qualified to practise as family counsellors or mediators. I remain of the view that the question of who is or who is not qualified to act as a counsellor or as a mediator is best answered by the organisations which engage those persons. I am aware that mediators, through the Mediators' Institute of Ireland, have set standards necessary for accreditation and training of mediators. That is the best way to proceed. Organisations involved in counselling and mediation are in the best position to set standards and qualifications for persons engaged in the provision of such services and I cannot accept there is a need for me, as Minister, to intervene in such a system. With regret, therefore, I must oppose the amendment.

Dr. Woods

I regret the Minister is taking that approach to this issue. I agree with him there are professional organisations who have provided certified lists of counsellors but there is a need to have a comprehensive register which covers all the people involved and the different organisations. The Minister does not necessarily have to set the standards; these organisations will provide the relevant information in that regard. There are various ways in which the Minister can deal with the issue without becoming too deeply involved in it. It is crucial that there is a recognised register of duly accredited and qualified people to work as mediators and counsellors. Without such a register we will be left with lists of various kinds but this matter is too important to be dealt with in that way. I do not believe it would be a great burden on the Minister's Department to oversee the establishment of such a register. Somebody will have to do it. I support the amendment.

Ms Keogh

I accept part of what the Minister has said. Deputy Woods is correct; I am not suggesting the Minister should be responsible for the evaluation of these persons but people who have embarked upon the type of course that is appropriate should be registered by his Department. I am not asking that the Department be the examining body in this regard but that there should be a register of those people who are appropriately trained. I have already made the point that some people might put themselves forward as being appropriately trained but that may not be the case. The simplest way of dealing with this matter is to have a register of people who have attended the recognised course and achieved the appropriate standards.

Amendment put and declared lost.

Dr. Woods

I move amendment No. 10:

In page 10, line 33, after "matter" to insert "and by a certificate signed by a person qualified to help to effect a reconciliation between the spouses, that the respondent has attended that person and has discussed the possibility of a reconciliation, and where appropriate a certificate signed by a person qualified to provide a mediation service, that the respondent has discussed with that person the possibility of engaging in mediation to help effect a separation (if the spouses are not separated) or a divorce on a basis agreed between the respondent and the other spouse".

Amendment put and declared lost.

Amendments Nos. 11, 12 and 13 not moved.

Ms Keogh

I move amendment No. 14:

In page 11, between lines 11 and 12, to insert the following:

"(4) Where an application is made to the court for the grant of a decree of divorce, or prior to the hearing of such application, an application is made to the court for an order under Part III, the court may, if it thinks fit, inquire into the matters certified in accordance with section 5 (4) (a) or section 6 (4) (a); and if the court is not satisfied that the requirements of section 5 (2) and (3), or, as the case may be, section 6 (2) and (3) have not been adequately met, the court may adjourn the proceedings until such time as it is satisfied that those requirements have been met.".

Sections 5 and 6 of the Bill require a solicitor to certify that he or she has discussed with the client the possibility of reconciliation, the possibility of a mediated settlement and the possibility of effecting a separation by agreement and the alternative of a judicial separation. There is no mechanism for the court to satisfy itself that this has been adequately done. Concerns have been expressed that these will be treated as a formality. I am anxious to ensure that this does not happen. The amendment proposes to empower the court to adjourn proceedings until such time as the requirements have been complied with. It is a reasonable request and I ask the Minister to accept the amendment.

Mr. Taylor

The effect of this amendment would be to allow the court to adjourn divorce proceedings where the court is satisfied that a solicitor has not met the requirements in sections 5 and 6 which provide safeguards to ensure the awareness of the parties involved of alternatives to those proceedings. The amendment is a repeat of a Committee Stage amendment. In committee I indicated that the effect of sections 5 (4) (a) and 6 (4) (a) as they stand is that where a solicitor does not submit a certificate indicating that the requirements set down in sections 5 and 6 have been complied with, the court may adjourn the proceedings to enable the requirements of those sections to be met. Because the amendment did not appear to add anything to the operation of sections 5 and 6, I did not support it then. I regret that, likewise, I cannot support it now.

Dr. Woods

I support the amendment.

Ms Keogh

As we are running out of time and I wish to discuss a number of other extremely important amendments, I will withdraw the amendment.

Amendment, by leave, withdrawn.

Dr. Woods

I move amendment No. 15:

In page 11, line 26, after "divorce," to insert "subject to the provisions of this Act, the legal force and effect of".

The Minister undertook on Committee Stage to look at the separation of the Church and State in this matter. Perhaps it would be more fruitful at this stage if the Minister told us his conclusions, having looked at the question. As it stands the section is bald and unequivocal in its effect. The Minister said he would see if it could be stated in any other way to make the position clear and avoid subsequent confusion. Perhaps it would be best to hear the Minister at this stage.

Mr. Ferris

I wish to contribute on the section but I do not know if I may do so on Report Stage.

An Leas-Cheann Comhairle

We are dealing with amendment No. 15.

Mr. Ferris

Perhaps we could discuss the section when we finish with the amendment.

An Leas-Cheann Comhairle

This is Report Stage. We can only discuss the amendments.

Mr. Ferris

I have grave reservations about sections 11 and 12. Many representations have been made to me and the Minister is aware of the problems.

Dr. Woods

Perhaps the Minister will enlighten us.

Mr. Taylor

In moving this amendment on Committee Stage, Deputy Woods indicated that the intention was to further underline the fact that the effect of the decree of divorce to be granted under the provisions in the Bill was to dissolve the civil aspects of a marriage. I undertook to consider the amendment further in consultation with the parliamentary draftsman. On the basis of those consultations, I am satisfied that there is no need for the amendment. The Bill makes provision for the dissolution of civil marriages by our courts. It does not concern itself with any other issues such as, for example, the validity or otherwise of marriages under Church law. The purposes and effect of the Bill are, therefore, clear. Accordingly, I cannot support the suggested amendment.

Dr. Woods

I tabled the amendment to try to clarify this matter as much as possible. The Minister has made a very clear statement on the question, and that is adequate. I will, therefore, withdraw the amendment.

Amendment, by leave, withdrawn.

Ms Keogh

I move amendment No. 16:

In page 11, between lines 32 and 33, to insert the following:

"9.—In any proceedings brought under this Act which affect, or may affect, a child, the court may appoint a guardian ad litem where it is satisfied that it is in the child's interests and in the interests of justice to do so.”.

I am glad we reached this amendment which is extremely important. We must be aware of the needs of children and ensure that their rights are safeguarded as far as possible. On Committee Stage the Minister very generously agreed to consider this amendment for Report Stage, I would remind the House the Law Reform Commission pointed out the need for this provision in many types of case. In these circumstances, we should be guided by its words.

The court might be anxious to ascertain the child's preferences in a case where, although the child was not mature enough to instruct a solicitor directly, important evidence could be introduced by a social worker who could gradually gain the child's confidence. There might be a need for an in-depth background report over and above that envisaged in section 47 of the Family Law Act. A guardian ad litem is not a substitute for a legal representative but should be an option where the court considers that something more than the standard social report is required for its adjudication. It is possible to establish an independant panel of social workers from which the court could appoint guardians ad litem. It is very difficult to over-estimate the care we must take in these circumstances. I will be very disappointed if the Minister does not take this on board. I await his response.

Dr. Woods

I support this amendment. We attempted to have another amendment introduced but it was ruled out because some day a charge might arise for the State. We would go further than this because we want a commissioner for children. That has been ruled out of order because the Government does not want to include it and it would involve a charge on the Exchequer. The purpose of a commissioner for children is not only to provide the support that would be given by a guardian ad litem but also to provide the resources to look after the children in cases involving marriage breakdown. This was one of the points in our five year plan to go with the referendum. I am disappointed the Government is not taking it on board.

I am sure the Government will say it will do something about it on the health side later but I do not agree with that approach. While a commissioner for children was clearly required to deal with the position of children involved in marriage breakdown, the commissioner should have been provided under this legislation. The guardian ad litem is a lesser version. This matter is put on the Order Paper because everybody knows the State has no resources for this area. That is hypocritical from the Government's point of view. I would rather see the Government proceed with the commissioner for children in the context of the referendum and this legislation. We support the amendment.

Mr. Taylor

Amendment No. 16 which would give the court power to appoint a guardian ad litem in divorce proceedings is a repeat of an amendment which was discussed by the Select Committee on Legislation and Security. I undertook to consider the amendment further in the period between Committee Stage and Report Stage. To put matters into context I should point out that the welfare of children whose parents experience the trauma of marriage breakdown and who subsequently institute divorce proceedings is a fundamental concern which has been considered in the context of the introduction of divorce legislation.

The amendment to the Constitution adopted by the people in November last and the Bill before the House are framed to ensure that the welfare of children on dissolution of marriage is protected. The Bill contains a series of measures which allow the court to make financial, property and other ancillary orders in support of children and makes it plain that a court upon granting a decree of divorce is empowered, where appropriate, to give directions regarding the welfare, custody of or right of access to a child without a separate application having to be made under section 11 of the Guardianship of Infants Act, 1964. Our separation laws contain broadly similar provisions.

The welfare of children is a major concern to the Government and I, as Minister with some responsibilities in that area, have initiated substantial legislative and administrative measures to deal with those concerns by way of the Maintenance Act, 1994, the Family Law Act, 1995, the Domestic Violence Act, 1996, with extra funding for legal aid, counselling and mediation. That work has not ceased. A Bill is in the course of being drafted to update aspects of the law on guardianship and custody of and access to children and on the giving of evidence by and in relation to children.

An Leas-Cheann Comhairle

I hesitate to interrupt the Minister but the time has come to put the question.

Mr. Taylor

I cannot accept this amendment.

Dr. Woods

The Minister's other amendments are acceptable.

An Leas-Cheann Comhairle

As it is now 6.45 p.m. I am required to put the following question in accordance with an order of the Dáil of this day: "That the amendments set down by the Minister for Equality and Law Reform and not disposed of are hereby made to the Bill; that Fourth Stage is hereby completed and that the Bill is hereby passed".

Question put and agreed to.

Minister for Equality and Law Reform (Mr. Taylor)

I am very pleased that the Family Law (Divorce) Bill has now been completed in Dáil Éireann and passes to Seanad Éireann for debate. As Deputies will know the last decade has seen major reform in the area of family law here. The Family Law (Divorce) Bill in many respects is the culmination of many years of reform. It is major legislation which gives our courts all the necessary powers to settle the very complex legal matters arising on foot of marriage breakdown and divorce.

I express my deep appreciation to Deputies on all sides for their many fine contributions. All the contributions have been beneficial to the Bill. I believe the Bill as it now stands is faithful to the decision of the people in the referendum and is fully in line with what they voted for last November.

Before concluding I wish to refer again to the concerns expressed in the course of today's debate in relation to the provisions of the Family Law Act, 1995, regarding notification of intention to marry. While I dealt at some length with the matter in the debate it is important to dispel any doubts or concerns which may still exist. I emphasise once again that there are no legal or constitutional difficulties with the operation of the provisions and the exercise by the courts of their jurisdiction under these provisions. Its operation illustrates the soundness of those provisions and there is no necessity for amending legislation in this area.

An Leas-Cheann Comhairle

I must move on to other business. There is no provision for speeches at this time.

Mr. Taylor

I want to express my thanks and appreciation to the staff of my Department who have worked so long and hard on this Bill.

Dr. Woods

I will be brief.

An Leas-Cheann Comhairle

Perhaps very briefly. There is no provision for speeches at this time.

Dr. Woods

The Bill which was circulated before the referendum was broadly in line with it and was faithful to what went before the people. Consequently we sought to strengthen the safeguards in this legislation, particularly in relation to children and to counselling and mediation and a number of other matters. I thank the Minister for listening. I am disappointed he did not agree with us on some of these issues, particularly on amendment No. 27 which we did not reach and which deals with value-added tax which the Government will charge on what is, in effect, human misery in marriage breakdown. We wanted him to waive it on Committee Stage but I had hoped he might do it here. It will mean about £6 million on the first 10,000 to 15,000 people who come through the system. It can now be used to improve the position for those who provide the services for people involved in marriage breakdown. I thank the Minister for his replies and everybody involved.

Ms Keogh

I congratulate the Minister. This has been a lengthy and tortuous process and I know he has a huge commitment to it. I wish him well in the other House. All parties co-operated in bringing this Bill through the Dáil. I regret some of the amendments were not accepted but we will have another go at them in the Seanad.

We must ensure that the reality of marital breakdown is dealt with in a caring, professional and effective manner. The Bill recognises that marriage breakdown is a factor of Irish life and that the State must do all in its power to ensure that families suffering the trauma of breakdown and divorce are given every support. This is why we sought to improve the Bill.

The Family Law Courts are creaking at the seams and there are fears about the burden imminent divorce cases will impose on them. We must be conscious of this and make provision for it. I am glad we have passed the Bill which will now be sent to the Seanad. I congratulate those members of the Minister's staff who worked so hard on the Bill.

Mr. Shatter

This is an historic occasion. I was a member of the Oireachtas Joint Committee on Marriage Breakdown——

Dr. Woods

As I was.

Mr. Shatter

——which in 1985 recommended this legislation. I am proud to say — I think the Minister will agree — that the Judicial Separation Act, 1989, which I was proud to pilot through this House, laid the foundation for the legislation we have passed this evening. The financial and property protections for women and children contained in the divorce legislation are a mirror image, of what we put through the House in 1989. I wish the Minister well with the Bill in the Seanad.

The next job of work which needs to be done is the implementation of the recommendations of the Law Reform Commission on family courts. If we do not rapidly bring those proposals forward there is a danger that in the New Year our courts will be overwhelmed by divorce cases. We must ensure that that does not happen and that people who suffer marital trauma have available to them the humane and responsive court system and structure to which they are entitled.

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