Tairgim: "Go léifear an Bille an Dara hUair anois."
I move: "That the Bill be now read a Second Time."
I am pleased to present the Thirty-fifth Amendment of the Constitution (Divorce) Bill 2016 before this House for its Second Stage debate.
Fiona Shackleton, Sir Paul McCartney's solicitor, said that the courtroom was a barbaric venue in which to pick over the carcass of a failed marriage. I could not have put it more aptly myself. I am one of the lucky ones. My husband may differ with me but I believe I have been happily married for the last 15 years. I have not had to go through a separation or divorce and I hope I never do. Having worked as a family lawyer, however, for two decades now this year, I know at first hand the truth in Ms Shackleton's words for so many separated couples throughout Ireland.
In marriage we promise ourselves to another "till death do us part". This solemn vow reflects an ideal; the steady love and companionship of marriage that many of us hope to enjoy for the duration of our time on this earth. Sadly, for many couples, this ideal is not reflected in reality. Many marriages break down and these couples should not have to suffer the further stress of an unwieldy and harsh four-year rule before they can apply for a divorce.
For too long Irish society was unwilling to face up to this reality. Marital breakdown was often judged harshly. This unwillingness to deal with the reality of marital breakdown was so prevalent in 1937 as to lead to divorce being explicitly banned in Bunreacht na hÉireann. Politics is the art of the possible. While some might wish that we in the Dáil could pass some legislation to mystically solve the marital problems faced by separating couples across the country, that is far beyond our powers. It is rather our responsibility to deal with the reality. It is our responsibility to accept the fact that marriages break down and to develop legislation to help, rather than hinder, separating couples as they strive to embark on the next chapters in their lives. It is for this reason I wrote my family law book on mediation in 2012, and why I am now bringing this Bill before the House on Second Stage.
The current constitutional requirement for separating couples to live apart for four years out of the preceding five before initiating divorce proceedings is too long. It is cumbersome and restrictive, placing severe and unnecessary strain, both financial and emotional, on separating couples. My Bill simply seeks to halve the necessary waiting time before initiating divorce proceedings from four years of living separated and apart out of the previous five to two years out of the previous three. I believe this to be both fair and achievable and it will make a significant positive difference to the lives of separating couples in Ireland.
It was 30 years ago that former Taoiseach, Garret FitzGerald, first attempted to tackle the issue of divorce. Irish society was not ready for it then and his divorce referendum was roundly defeated. Ten years later, when divorce would finally be passed by referendum, at the instigation of another former Taoiseach, John Bruton, it would only be by the thinnest of margins. The price to win over a wary electorate was the mandating of a four-year waiting period in the Constitution. The people said we could have divorce but they were not willing to make it easy.
Ireland has changed a lot in the past 20 years. We have become a more open, welcoming society, less willing to judge the personal lives of others. I do not believe that the attitudes towards divorce expressed in the 1995 referendum are a reflection of today's Ireland. I remember the strong campaign against divorce in 1995. The famous slogan "Hello Divorce, Bye Bye Daddy" did not hold true and the floodgates did not open.
We have not seen the wholesale breakdown of marriage in Ireland. At one in ten, we have one of the lowest marital breakdown rates in the world, which is to be welcomed. The Irish people, in the main, still rightly cherish the ideal of marriage. This is also demonstrated by the great enthusiasm shown by Ireland’s LGBT community in 2015 to gain equal access to marriage under Irish law.
Study after study on reduced mandatory waiting times for divorce reach the same conclusion - the enactment of this Bill will not promote marital breakdown. It will simply allow people whose marriage has broken down to access the legislative certainty and finality of a divorce within a reasonable time. We must do it by way of referendum because it is already in the Constitution. I suggest it should be an issue to be voted on on a "super referenda" day in due course.
The 2016 census shows us a clear picture. Over 280,000 Irish people have experienced marital breakdown. Some 104,000 are divorced with 62,000 being remarried. In addition 118,000 are separated or judicially separated.
For some, separation has been chosen over divorce, but for many, the decision not to pursue a divorce is driven by the sheer financial cost of prolonged legal proceedings imposed by the four-year rule. The severe burden forced upon separating couples seeking a divorce by the four-year rule is far from limited to financial costs. In my experience, prolonged matrimonial litigation serves only to increase hostilities and to prolong a process that will mark one of the most difficult periods in separating individuals’ lives. It is hard to overstate the extreme stress caused by such a long divorce process, not only on a couple but on all those around them, particularly their children.
There is an increased risk of assets being hidden and relocations the longer the interim period between separation and divorce with resulting difficulties in enforcing maintenance and access orders. In many cases, the time to reach a divorce settlement is so lengthy as to necessitate two separate sets of legal proceedings with many interim applications in the intervening time. For some people it is necessary to get a deed of separation or a judicial separation prior to seeking a divorce in order to obtain some legal clarity on issues relating to the family home, property, pension and other ancillary reliefs. Not only is this lengthy, but separation deeds and judicial separation decrees lack the finality and certainty of a divorce.
As we know the chief distinction between separation and divorce is the right to remarry.
We can and must do better and the Bill helps us to aim to achieve that. It is not a radical departure in divorce law; it simply seeks to reduce the time limit from four years out of the preceding five to two years out of the preceding three. Its aim is clear and its intention is straightforward. It is important to stress that the other provisions of Article 41.3.2° of the Constitution for divorce relating to there being no prospect of reconciliation and that proper provision is made for both parties and any dependent children will remain as is.
It is also important to point out that the section 20 factors outlined under the Divorce Act 1996 will also continue to be taken into account by judges of the Circuit Court or High Court in granting their decrees of divorce. These are factors such as the earning capacity of the parties; their age; any accommodation needs; any physical or mental disability; conduct only if it is unjust to disregard it; contributions the spouses are likely to make into the future; the standard of living before living apart; whether a spouse has foregone any remunerative work to care for children; and the rights of any other spouses. All of these criteria will still be taken into account by judges in making divorce decrees. My Bill does not change that.
Looking at other jurisdictions, there is a standard two-year waiting period for divorces in the UK with mutual consent. A number of US states, Belgium - without mutual consent - Italy and Greece have no waiting time. There is a one-year waiting time in Spain. France, Norway, the Netherlands, Austria, Germany, Sweden, Denmark, Scotland and Switzerland have waiting times around two years. In Finland it is six months. In Russia like Ireland it is nearly four years, however it has a quirky proviso that a husband cannot file without a wife’s consent if she is pregnant or has a child under the age of one.
The trend across Europe and beyond is towards shortened mandatory waiting periods for divorce, which is widely seen as inherently fairer for separating couples. I am greatly pleased by the cross-party support that has been expressed to me personally from politicians throughout this Chamber and indeed my own party. I am also extremely pleased that so many civil society groups support the Bill. Patricia Kearns from separated.ie is in the Gallery. I thank her for coming along today and for her support and that of all the family lawyers who are enthusiastically backing this Bill. I also thank my former parliamentary assistant Oisín Crotty, a barrister at law, who conducted an enormous amount of research for me on the Bill and is also in the Gallery.
Twenty years after the introduction of divorce, I believe that Ireland in 2017 is confident enough to confront the realities of marital breakdown in this country and mature enough to recognise that our current divorce law is punitive and unfairly restricts the ability of thousands of Irish citizens who have separated from moving on with their lives. It is time for this Chamber to stand up for Ireland’s separated people and in the spirit of fairness lessen a major, unnecessary obstacle to beginning the next chapter of their lives following marital breakdown.
I am honoured, humbled and privileged to present the Thirty-fifth Amendment of the Constitution (Divorce) Bill 2016 to the House and I urge my colleagues to support it.