Thirty-fifth Amendment of the Constitution (Divorce) Bill 2016: Report and Final Stages [Private Members]

Tairgim leasú a 1:

I leathanach 5, línte 12 go 15 a scriosadh agus an méid seo a leanas a chur ina n-ionad:

"(a) aisghairfear mír i d’fho-alt 2° d’alt 3 den téacs Gaeilge;

(b) aisghairfear mír i d’fho-alt 2° d’alt 3 den téacs Sacs-Bhéarla;

(c) déanfar mír ii d’fho-alt 2° d’alt 3 den dá théacs a uimhriú mar mhír i;

(d) déanfar mír iii d’fho-alt 2° d’alt 3 den dá théacs a uimhriú mar mhír ii;

(e) déanfar mír iv d’fho-alt 2° d’alt 3 den dá théacs a uimhriú mar mhír iii;

(f) cuirfear an fo-alt a bhfuil an téacs de leagtha amach i gCuid 1 den Sceideal in ionad fho-alt 3° d’alt 3 den téacs Gaeilge;

(g) cuirfear an fo-alt a bhfuil an téacs de leagtha amach i gCuid 2 den Sceideal in ionad fho-alt 3° d’alt 3 den téacs Sacs-Bhéarla.".

I move amendment No. 1:

In page 4, to delete lines 11 to 14 and substitute the following:

"(a) paragraph i of subsection 2° of section 3 of the Irish text shall be repealed;

(b) paragraph i of subsection 2° of section 3 of the English text shall be repealed;

(c) paragraph ii of subsection 2° of section 3 of both texts shall be numbered as paragraph i;

(d) paragraph iii of subsection 2° of section 3 of both texts shall be numbered as paragraph ii;

(e) paragraph iv of subsection 2° of section 3 of both texts shall be numbered as paragraph iii;

(f) the subsection, the text of which is set out in Part 1 of the Schedule, shall be substituted for subsection 3° of section 3 of the Irish text;

(g) the subsection, the text of which is set out in Part 2 of the Schedule, shall be substituted for subsection 3° of section 3 of the English text.".

As Deputies are aware, under Article 41.3.2° of the Constitution, as amended by the fifteenth amendment in 1995, a court may grant a divorce only where specific conditions have been met. The first condition is that on the date of institution of the divorce proceedings, the spouses have lived apart from one another for a total of at least four years during the previous five years. The second condition is that there is no reasonable prospect of a reconciliation between the spouses. The third condition is that proper provision exists or will be made for the spouses and any children of either or both of them. The final condition is that any further conditions prescribed by law are complied with.

I remind the House that in 1995 we were moving from a position where the Constitution provided clearly that "No law shall be enacted providing for the grant of a dissolution of marriage" to one in which divorce was to become possible in Ireland for the first time but subject to very specific conditions, which were set out in the new provision inserted by the fifteenth amendment. The purpose of the mandatory period of living apart was to ensure that divorce would not be available on an easy or casual basis, in order to address concerns about what were described as quickie divorces and the development of what was described as a divorce culture in Ireland.

The four-year period was intended to ensure that spouses would not enter into divorce lightly and would have the necessary time to reflect on the serious step they were undertaking. It was also considered that it would encourage spouses to attempt to reach agreement on the terms of their separation in a way that would ensure that, when the divorce application came before a court, many of the key elements relating to children, finance and property may already have been settled between the spouses and a form of agreement reached.

The four-year period of living apart can be cumulated over a five-year period. The reason for this is to allow a couple to make a reasonable attempt at reconciliation in the knowledge that, if it does not work out, they will not have lost their option to make an application for a divorce. However, it is now 23 years since divorce was introduced in Ireland and the four-year minimum living apart period is now perceived to be unnecessarily restrictive and as hindering couples who have separated from regularising their legal positions and, in many respects, moving on with their lives.

The Government has taken the opportunity presented by this Private Members' Bill, introduced by my colleague, the Minister for Culture, Heritage and the Gaeltacht, Deputy Josepha Madigan, to re-examine the provisions of Article 41.3.2° of the Constitution and consider the question of the scope of the constitutional amendment that might be proposed. I acknowledge the work of the Minister in this regard.

Without unnecessarily delaying proceedings on the amendment, it is important to point out that Ireland has one of the lowest divorce rates in Europe and I welcome this. Sadly, however, some marriages break down irreconcilably, causing immense grief, sadness and stress for everybody concerned. The Government wishes to ensure that the process for obtaining a divorce is fair, dignified and humane and allows both parties to move forward with their lives within a reasonable timeframe.

I propose an amendment to the Constitution to remove the four-year minimum living apart period from Article 41.3.2°. I also propose an amendment to replace the text of Article 41.3.3° in the matter of the recognition of foreign divorces with a new provision.

Over time, we have learned that very complex questions of social policy are best dealt with through detailed legislation in the Oireachtas, with the Dáil and Seanad reaching agreement in committee and plenary or making proposed changes in accordance with the rules of both Houses, rather than in our Constitution. The fundamental principles and protections concerning divorce will not change and the Government does not propose any change to the other provisions of Article 41.3.2° of the Constitution. The requirements that there be no prospect of reconciliation will remain in the Constitution. The requirement that proper provision exists or will be made for spouses and children will continue within the constitutional framework. It will also remain the case that only a court of law can grant a divorce.

The Government intends, subject to the passage of the Bill by the Dáil and Seanad, to hold a referendum on divorce alongside the votes for the European and local elections on Friday, 24 May 2019. On 26 February 2019, my colleague, the Minister for Housing, Planning and Local Government, Deputy Eoghan Murphy, made an order under the Referendum Act 1998 to establish an independent statutory referendum commission for the purpose of the referendum on divorce. In accordance with the 1998 Act, the Chief Justice nominated Ms Justice Tara Burns to act as chairperson to the commission.

It is important to have broad consensus in the Oireachtas for any proposal that will be put to the people. Deputies will recall that I have engaged in consultations with parties and political groupings on options for the scope of the constitutional amendment that might be proposed. I acknowledge the broad cross-party support in the Oireachtas for the proposed changes.

Turning briefly to the proposed amendment to Article 41.3.2°, the effect of the amendment would be that the Constitution would no longer provide for a minimum living apart period, but that such a period could be defined in law by the Houses of the Oireachtas. Removing the time period from the Constitution would give the Oireachtas a greater element of flexibility to legislate to ease the burden on people who have experienced the tragedy of a marriage breakdown and wish to begin again.

As it stands, the long period of living apart required under the Constitution frequently leads to couples seeking an order for judicial separation prior to obtaining a divorce, with attendant legal costs and additional upset, stress and worry. If the referendum is passed, it is the Government’s intention to deal with the living-apart period by way of ordinary legislation to be introduced in the House. The Government will bring forward a Bill to amend section 5(1)(a) of the Family Law (Divorce) Act 1996 to reduce the minimum living-apart period specified in that Act to two years during the previous three. Deputies will be aware that I have published the draft general scheme of a Bill to provide for this.

It is my strong contention that this reduction would enable couples whose marriages have broken down with no reasonable prospect of reconciliation to regularise their affairs sooner. A shorter living-apart period would also have the potential to reduce the legal costs involved, as couples would be less likely to need to apply for judicial separation or make a formal separation agreement while waiting to become eligible to apply for an order of divorce through the courts.

I know that Irish people are very compassionate and will show empathy and understanding to those who find themselves in the desperately sad situations where marriages break down with no prospect of reconciliation. The aim of the proposed amendments is to decrease the burden on people whose marriages have, sadly, broken down.

I apologise to the Leas-Cheann Comhairle if I have transgressed any regulation, but it has been some time since the House debated this issue. We are dealing with Report Stage of a Bill which would introduce what I will describe as a fundamental change and I am very keen to hear the views of Deputies with a view towards achieving consensus.

Fianna Fáil supports the Bill and will not oppose any of the amendments that have been tabled. I seek clarification on one point in regard to the legislation that would follow a successful referendum. The Bill proposes that a couple seeking a divorce will be required to have lived apart for two of the previous three years. The Minister and I and probably all other Members of the House will have encountered cases involving marriages which have tragically broken down with no chance of reconciliation, but involving a couple who cannot afford to live apart due to financial pressures. The couple are living separate lives and might as well be living five, ten or 20 miles away from each other, but for financial reasons they are, essentially, trapped in the same house. What is the view of the Government on that issue? Will it propose clauses to address it? Will consideration be given to situations where it could be proven by way of verifiable facts presented to the appropriate officer or court that the couple involved would be living apart for the two-year period if they could afford to so do? Will such situations be accounted for?

Sinn Féin supports the Bill and will not oppose any of the amendments. I wish to address the point raised by Deputy Donnelly which I also intended to raise. I am sure all Members are aware of marriages which, unfortunately, have broken down with no prospect of reconciliation, but for financial reasons the couple are unable to live apart. I do not know if that can be addressed in the Bill or the legislation which will follow the referendum, but it needs to be discussed at some stage because, unfortunately, many estranged couples are living under the same roof. Some such people may have moved on to new relationships but remain living with their spouse for financial reasons. I cannot quantify the numbers involved, but I personally know people in that situation. We must give consideration to whether such situations can be addressed in the legislation. I do not know if that would be possible, given that the Constitution would be changed and we must be very clear about what is being proposed and the resultant legislation would have to reflect that. It is an issue which we should consider. If the Government can reach a solution on this issue, it would be worthwhile.

An issue I was asked to raise by Deputy Ó Laoghaire, who, unfortunately, cannot be present as he has returned to Cork for a funeral, is that of how contested and uncontested divorces will be addressed. My view is that the proposals in the Bill would make no difference in that regard because a couple would live apart for two years of the previous three and if it was a contested divorce, it would be a matter for the courts to rule on. I do not think the issue has any bearing on this debate, but I raise it as I was asked to so do. People are entitled to contest requests for a divorce through the courts and I presume that is where they would be contested.

I welcome the amendment. Solidarity-People Before Profit argued for it on Committee Stage because we thought it inappropriate to have this restriction in the Constitution. We would argue against having any restriction in regard to this issue and I will go on to address that point.

As a slightly more general comment in line with the comments of the Minister on the nature of the Bill, we should not be complacent about the referendum. We must campaign for it to be passed. Most political commentators would quite confidently predict that it is likely to be passed. It is to be hoped that it will be passed by a substantial margin. One could contrast the current situation with the referendum in 1995 in terms of the extremely narrow 0.5% margin of victory and the type of rhetoric employed by the Catholic right-wing "No" campaign, such as "Hello Divorce ... Bye Bye Daddy". It is a sign of the massive societal shift in a very progressive direction that has taken place and the Bill is to be welcomed as part of that change. Fundamentally, we need a separation of church and State in this country and the Bill is part of that process.

There should not be any time restrictions in regard to divorce. It is a civil right for any couple to marry, as affirmed by the marriage equality referendum. The necessary corollary to that is that people also have the right to divorce without interference or judgment by the church or State regarding why they are choosing to so do. The Government should legislate to allow people who wish to divorce to so do.

I would be interested to hear an assessment of the impact of the restrictions. Obviously, we know the impact of the current restrictions. Although the restrictions proposed in the Bill are preferable to those currently in place and it is preferable that they to be enshrined in legislation rather than the Constitution in order that they may be more easily amended, we know that the current restrictions have very negative impacts. Lesser restrictions will continue to have negative, although lesser, impacts. In particular, those who will be most affected by the restrictions are the most vulnerable. The reality is that a couple, possibly without children, seeking an amicable divorce may be able to agree to say that they were living apart for two of the past three years, etc., and that the judge will accept that if it is not contested and the divorce will be very quickly processed. However, in other cases the divorce may not be amicable and may involve an abusive former partner who may dispute the amount of time spent separated in order to make it difficult for the partner seeking a divorce to obtain it. In such cases, the restriction would come into play in a negative way for those who are more vulnerable, such as people in abusive situations. I would be interested to hear the Minister's assessment of the impact of the restrictions in such instances.

Solidarity-People Before Profit welcomes the legal progress represented by the Bill.

In order for legal rights to become a reality, however, they need to be accompanied by economic and social changes that make them accessible. The truth is that many individuals, particularly women, are trapped in marriages or relationships that are abusive or that are simply unhappy. Without the family home or joint income, they could be made homeless.

There is some irony in the fact that at the same time as Fine Gael is proposing the liberalisation of divorce laws, of which we are in favour, there have been quite substantial cuts in funding for refuge services for those fleeing domestic violence. Ireland has fewer than one third of the refuge spaces it should have according to European guidelines. There are only 11 refuge unit spaces available in Dublin city, and one in three counties across the country has no spaces whatsoever. The costs of getting legal advice and representation can be prohibitive in the case of a disputed divorce. To make accessible the legal right, which we welcome, economic and social changes are needed. It needs to be combined with the right to free legal advice and free legal representation for all who need it.

Essential to all this is the discussion we were just having on the housing and homelessness. The right to safe, affordable housing and an adequate number of refuge spaces are key if people are to exercise freely their choice to be in relationships or marriages as opposed to being compelled to remain in them by economic circumstances, which is an all-too-common reality in this country.

I thank the Deputies for their comments. I appreciate the parties' approach to this issue. The Leas-Cheann Comhairle has been in this House longer than me but it seems from my recollection that no referendum has ever been passed with the support of a Government party or Government parties alone. I believe, therefore, it is important that we endeavour to achieve the type of consensus I am very pleased to see emerging. I thank Deputies Donnelly and Jonathan O'Brien and their respective parties. I thank the parties that are not represented here at this debate but that expressed their broad support.

I acknowledge the support of Deputy Paul Murphy, who would like to see us go further, with particular reference to the time limit. We are removing a time limit from the Constitution but retaining a reduced time limit in law. I gather from what Deputy Paul Murphy said that he believes there is no necessity for such a limit. I do not necessarily agree but I am keen to ensure we put something to the people in a constitutional referendum that will receive their broad support. With that in mind, it is important that we do not delete all references in our law to a time limit. For reasons I have already stated, it is desirable to reduce the time limit but also to remove such limits from our Constitution, such that these issues can be decided by law. We will have an opportunity to address this at another stage, when proceeding with the law, should the Irish people form the view that the change put forward is desirable. I take Deputy Paul Murphy's point, however, not that I agree with it.

Deputy Donnelly made an important point on living separately and apart, a point also made by Deputy Jonathan O'Brien. Deputy Paul Murphy raised it in the context of the broader economic and social debate. These are very reasonable points. I have given reasons for the Government's view on why it is desirable to have time limits.

Ultimately, it will be up to the courts to decide on the basis that, regardless of what the people decide, under our Constitution divorce will be granted only by way of an order of the court. The judge will be required to take into consideration all factors in determining whether the living-separately-and-apart requirement has been met. I can say to Deputy Donnelly that the courts have already recognised circumstances in which couples can be living apart and separately but at the same time under the one roof. I say this in order to assuage the concerns of the Deputies Donnelly and Jonathan O'Brien somewhat. In other words, our law has recognised that people can be sharing the one dwelling but regarded as living apart for the purpose of granting an order of divorce. The court will inquire into and deal with these circumstances. Recognition has already been an issue in our courts.

Deputy Jonathan O'Brien, who probably goes further than Deputy Donnelly in this regard, should note that the question of clarifying exactly what is meant by living apart can be examined in the implementation of the legislation. I acknowledge what the courts have said and that this is an issue that will be taken into consideration by them but, for the purpose of clarification for Deputy Jonathan O'Brien, we can we can examine it further.

In response to Deputy Paul Murphy, we have ample opportunity in this House to deal with the issue of housing. I do not want to digress, not that the Leas-Cheann Comhairle will allow me, but I feel the Deputy makes an important point when he speaks about emergency refuge accommodation for victims of domestic violence. As Minister for Justice and Equality, I am very keen to have progress reported across the country on this matter. I have been speaking to interested parties and stakeholders in this regard. I represent a rural constituency and see parts of the country where there are deficiencies. I take the Deputy's point. It is one we will have an opportunity to revert to in the House in the context of the broader debate. With regard to advances we have made on tackling the scourge of domestic violence, I point to the recent ratification and signing of the Istanbul Convention and to legislative change of the appropriate level. We have succeeded in enacting four Bills in this House over the past couple of years. I acknowledge, as a member of a minority Government, the support and assistance of all parties in ensuring we enter a new era regarding how we treat domestic violence, showing zero tolerance towards it. For example, I am very keen to ensure appropriate investment in An Garda Síochána to allow that body, along with various agencies, to work to capacity to ensure we can tackle the issue raised.

There is another question but we have stretched two minutes into ten. The Minister was allowed two minutes but he will have another two, if he so wishes.

I would like to make a brief point about domestic refuges in response to the Minister. I am eager to see as big and substantial a "Yes" campaign as possible. I hope there will be as big and substantial a margin of victory for the "Yes" campaign as possible. To assist in the achievement of that outcome, I urge the Minister to go beyond his welcome words about the absence of domestic refuge services in large parts of the country and the deficiencies in those services relative to the European guidelines. I ask him to ensure that substantial change takes place. It is inevitable that during the discussion and conversation that takes place in society in the run-up to next month's referendum, there will be a wider discussion away from the wording of Article 41 of the Constitution about all the difficulties that are presented in the context in which relationships break down and in which people attempt to end relationships. It is obvious that legal difficulties present a significant impediment to a marriage being ended with a divorce. It is appropriate that we are dealing with those difficulties. All of the other impediments that exist will also be a part of the conversation. I urge the Minister to discuss this aspect of the matter with his Government colleagues with a view to ensuring action is taken in the next couple of months.

I want to acknowledge the disposition on the part of stakeholders, including non-governmental organisations, women's groups and other groups that have been engaged in family law at the cutting edge over recent years. I encourage them to ensure that they have an opportunity to play an important part in ensuring a broad level of information is available to the public so that we can have an active, positive and constructive debate. I welcome the positive aspects of Deputy Paul Murphy's contribution.

Aontaíodh an leasú.
Amendment agreed to.

Amendments Nos. 2 and 3 are related and may be discussed together.

Tairgim leasú a 2:

I leathanach 5, líne 17, "An Cúigiú Leasú is Tríocha ar an mBunreacht a thabharfar ar an leasú a dhéantar ar" a scriosadh agus "An tOchtú Leasú is Tríocha ar an mBunreacht a thabharfar ar an leasú a dhéantar ar" a chur ina ionad.

I move amendment No. 2:

In page 4, line 16, to delete "The amendment to the Constitution effected by this Act shall be called the Thirty-fifth" and substitute "The amendment of the Constitution effected by this Act shall be called the Thirty-eighth".

I am introducing amendments Nos. 2 and 3, which are technical drafting amendments, on the advice of the Office of the Parliamentary Counsel. I am proposing that the Title of the Bill should be amended to "the Thirty-eighth Amendment of the Constitution (Dissolution of Marriage) Bill". The change in the number of the amendment from the thirty-fifth amendment to the thirty-eighth amendment takes account of the Thirty-sixth Amendment of the Constitution Act 2018 and the Thirty-seventh Amendment of the Constitution (Repeal of offence of publication or utterance of blasphemous matter) Act 2018, which we have dealt with in referendums since this Bill was first introduced by the Minister for Culture, Heritage and the Gaeltacht, Deputy Madigan. The proposed change from "Divorce" to "Dissolution of Marriage", as provided for in amendment No. 3, is intended to better reflect the wording of Article 41 of the Constitution. The proposed replacement of "to the Constitution" with "of the Constitution", as provided for in amendment No. 2, is a mere technical drafting amendment to ensure consistency with previous Bills to amend the Constitution.

As I understand it, the consequence of this proposal is that we will never have a thirty-fifth amendment. Is that the normal way of doing things? I am not going to oppose amendment No. 2 just because it changes the numbering. Is this the usual procedure? Were there other proposed amendments between the first amendment and the thirty-eighth amendment which were skipped without going to the people in a referendum?

This Bill, in its current form, reflects the number we are now at. A number of proposed amendments were not successful. I will get the Deputy a note to clarify the actual position. I do not know the sequence of numbers. At the outset, each Bill would have been given a number in sequence. I will be happy to let the Deputy know what happened to the thirty-sixth amendment if I get an opportunity to do so.

It is the thirty-fifth amendment we are missing.

We will get clarification. It is not going to delay the passage of the Bill.

Aontaíodh an leasú.
Amendment agreed to.

Tairgim leasú a 3:

I leathanach 5, línte 19 agus 20, "an tAcht um an gCúigiú Leasú is Tríocha ar an mBunreacht (Colscaradh), 2016" a scriosadh agus "an tAcht um an Ochtú Leasú is Tríocha ar an mBunreacht (Scaoileadh ar Phósadh), 2019" a chur ina ionad.

I move amendment No. 3:

In page 4, lines 18 and 19, to delete "Thirty-fifth Amendment of the Constitution (Divorce) Act 2016" and substitute "Thirty-eighth Amendment of the Constitution (Dissolution of Marriage) Act 2019".

Aontaíodh an leasú.
Amendment agreed to.

Tairgim leasú a 4:

I leathanach 7, línte 3 go 5 a scriosadh agus an méid seo a leanas a chur ina n-ionad:

"3° Féadfar socrú a dhéanamh le dlí chun aitheantas a thabhairt faoi dhlí an Stáit do scaoileadh ar phósadh arna thabhairt faoi dhlí sibhialta stáit eile.";

agus

I leathanach 7, línte 7 go 9 a scriosadh agus an méid seo a leanas a chur ina n-ionad:

"3° Provision may be made by law for the recognition under the law of the State of a dissolution of marriage granted under the civil law of another state.".

I move amendment No. 4:

In page 6, to delete lines 3 to 5 and substitute the following:

"3° Féadfar socrú a dhéanamh le dlí chun aitheantas a thabhairt faoi dhlí an Stáit do scaoileadh ar phósadh arna thabhairt faoi dhlí sibhialta stáit eile.";

and

In page 6, to delete lines 7 to 9 and substitute the following:

"3° Provision may be made by law for the recognition under the law of the State of a dissolution of marriage granted under the civil law of another state.".

This amendment deals with the Government's proposal to modernise the provision in Article 41.3.3° of the Constitution on the matter of the recognition of foreign divorces. I am proposing the replacement of Article 41.3.3° with a readily understandable provision which clearly provides that the Oireachtas may legislate for the recognition of foreign divorces granted under the civil law of another state. The proposed new text will do no more than set out in express terms what the courts have found to be the present state of the law. However, in order to ascertain the present state of the law it is necessary to examine the case law on the interpretation of Article 41.3.3°. I am of the view that the constitutional position regarding the recognition of foreign divorces should be clear from a reading of our Constitution, particularly Article 41 thereof.

At present, different rules apply to the recognition of foreign divorces, depending on whether they are granted within or outside the EU. The Domicile and Recognition of Foreign Divorces Act 1986 governs the recognition of a divorce granted in a country outside the EU. The 1986 Act provides that a foreign divorce granted after the Act came into operation may only be recognised in Ireland if it was granted in a country where either spouse was domiciled on the date on which the divorce proceedings were instituted. The recognition of foreign divorces granted prior to the commencement of the 1986 Act is governed by common law domicile rules. Those rules are now consistent with the provisions of the 1986 Act, which is our law. The determination of domicile includes an assessment of the person's intention to remain indefinitely in the foreign jurisdiction. It has proven complex to determine this in some instances. By contrast, a test of habitual residence, which may be considered less complex and more clear, generally applies across the EU. EU Council Regulation 2201/2003, which is known as the Brussels IIA regulation, governs the recognition of divorces obtained in another EU member state. Habitual residence is the key governing criterion for recognition of a foreign divorce. The Law Reform Commission, LRC, has proposed to examine the legal issues relating to the recognition of foreign divorces after the referendum as part of its new fifth programme of law reform.

These are complex issues. That is why I am very keen for the LRC to have an opportunity to engage in a detailed study. I understand that will be done this year. I intend to legislate to introduce greater consistency in the recognition of foreign divorces. I ask Members to agree with me that it is best for us to be guided by the expert report of the LRC as we develop proposals for legislation in this area. However, it is also important for us to take this opportunity to signal that there will be a change in any event. The language of Article 41.3.3°, which deals with the recognition of foreign divorces, is consistent with a time in our history when divorce was expressly prohibited under our Constitution. We did not deal with this on the previous occasion. To my mind, the referendum in May is both opportune and appropriate to modernise this provision, although we will not have certainty until we have the LRC report.

Aontaíodh an leasú.
Amendment agreed to.
Glacfar an mBille, mar a leasaíodh é, chun an breithniú deiridh a dhéanamh air.
Bill, as amended, received for final consideration.
Cuireadh an cheist: "Go rithfidh an Bille anois."
Question proposed: "That the Bill do now pass."

Perhaps the Minister for Culture, Heritage and the Gaeltacht could be permitted to say a few words on the Bill.

We are going to deal with that separately now.

Cuireadh agus aontaíodh an cheist.
Question put and agreed to.

The Bill will be sent to the Seanad.