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Seanad Éireann debate -
Wednesday, 13 Dec 1972

Vol. 73 No. 15

Marriages Bill, 1972: Committee and Final Stages.

Before we take up the Committee Stage of this Bill I wish to indicate that I have ruled amendment No. 8 out of order. It is not relevant to the subject matter of the Bill as read a Second Time.

Amendments Nos. 1 and 6 may be discussed together.


Government amendment No. 1:
Before section 1 to insert the following new section:
1. (1) A marriage solemnised between persons either of whom is under the age of sixteen shall, subject to the next subsection, not be valid in law.
(2) Subsection (1) of this section shall not apply where exemption from it has been obtained before the marriage from the President of the High Court (or by a Judge of that Court nominated by the President thereof).
(3) The following provisions shall have effect in relation to an application under subsection (2) of this section—
(a) it may be made by or on behalf of either party to the intended marriage and without the intervention of a next friend,
(b) it may be made informally through the Registrar of Wards of Court in accordance with rules of procedure directed by the President of the High Court,
(c) it may be heard and determined in private,
(d) it shall not be granted unless the applicant shows that its grant is justified by serious reasons and is in the interests of the parties to the intended marriage,
(e) no court fee shall be charged in respect of it, and
(f) no further application in respect of the marriage may be made under that subsection.
(4) Any person to whom application is made in relation to the solemnisation of an intended marriage may, if he so thinks fit, request the production of evidence of age with respect to both parties or either party.
(5) Where a request is made under subsection (4) of this section—
(a) refusal or failure to comply with the request shall be proper reason for refusal of the application,
(b) if the request is complied with and the evidence shows that both parties or either party are or is under the age of sixteen, the application shall be refused unless the evidence is accompanied by the appropriate exemption under subsection (2) of this section.
(6) Where a person knowingly—
(a) solemnises or permits the solemnisation of a marriage which, consequent on the provisions of this section, is not valid in law, or
(b) is a party to such a marriage,
such person shall be guilty of an offence and shall be liable on summary conviction to a penalty not exceeding fifty pounds.
(7) Where a marriage would not be regarded as valid in law unless an exemption under subsection (2) of this section in respect of it has been granted, it shall not be registered save on production, to the person effecting the registration, of such exemption.

Under section 1 of the Bill before the House, exceptions as to age are a matter for religious authorities in respect of marriages solemnised by the larger religious bodies. For marriages solemnised by the smaller religious groups and civil marriages, exemptions are a matter for the courts. Each person under 16 years contemplating marriage, under section 7 of the Bill is required to have parental consent to the marriage or, alternatively, the consent of the courts. This requirement of parental consent was seen as a considerable safeguard and help to any religious authority required under section 1 of the Bill to take a decision about an under-16 marriage.

Furthermore, all the religious authorities mentioned in section 1 were specially experienced in dealing with unusual marriage applications. The Catholic Church authorities have their own highly-developed regulations and organisation. The others named in the section are persons authorised by statute to issue special licences. Under special licences all or any of the usual statutory requirements, as to residential qualifications, time, notices of marriages and place of marriage, may be disregarded. These quite exceptional powers have been vested in the authorities named for over a century. The Chief Rabbi, who has been added to the list of persons authorised to issue special licences, was also added to the list in section 1. No other addition was contemplated.

Furthermore, the number of under-16 marriages is very small, averaging about 30 a year. From the details which I have extracted for the two years 1969-70 combined, 57 applications would have been dealt with by the Catholic Church authorities if section 1 had been in operation at that time. Two applications would have been decided by the Church of Ireland authorities and four by the courts. It is not, therefore, a problem of major proportions. With the provisions of section 1 in operation, the number of under-16 marriages would fall.

There is also the consideration that, given parental or court consent under section 7, the churches might best fit into the consenting role proposed under section 1. This, in substance, was the case for the section as it appears and which in its terms could be defended and justified. However, there remains a volume of dissatisfaction with the provisions of section 1 before the House. This is evidenced by the debate which has already taken place, the amendments tabled by Senator Horgan and representations made by certain church authorities. I accept that the objections raised are sincerely held and are being reasonably voiced. It is important that this dissatisfaction should be dissipated.

Accordingly, I have tabled an amendment which meets fully the objections raised. I table this amendment as an earnest of the kind of approach which I hope will be manifest when the different interests are considering the outline terms of the comprehensive measure which must follow, as a token of sympathy with the points of view expressed and in an effort to meet the views of this House on an issue of this sort.

Under the amendment, all under-16 marriages will require the consent of the courts which is obtainable in a simple, informal, private and inexpensive way. The consenting judge must be satisfied, in the words of the United Nations Convention and Resolution, that there are serious reasons for granting the exemption and that it is in the interests of the intending spouses. I must emphasise that parental consent or, in its absence, court consent under section 7, remains necessary for any under-age party.

What I have described so far is the strictly legal position as affected by the provisions of the section and amendment. I have made no reference to the desirability or otherwise of marriage at 16 or even 18; the role of the parents in such a marriage; the pastoral and guiding role of religious bodies; the undesirability voiced by so many of pregnancy not being a compelling reason in itself for a marriage, particularly the marriage of a very young person; and the necessity for an adequate and readily available marriage guidance and counselling service of quality. These are the social questions of importance which must not be overlooked.

Now that it is being proposed to raise the minimum age to 16, I look to parents, religious authorities, sociologists and other interested persons to see this statutory provision not as an end in itself but as an aid to develop and encourage a responsible and mature approach to the marriage of young people. I look in particular to parents to intensify and deepen their efforts to control or to guide and help their children in deciding when to marry and when not. I ask everyone capable of playing a part in this great problem to redouble their efforts so that young people faced with a marriage decision will look with confidence for the help they need. What I have said applies equally to marriages at 16 or 18 which are the subject of special provisions in or amendments to the Bill.

I should like also to emphasise both as regards sections 1 and 7 that it is not the intention to eliminate or reduce the pastoral role of the religious bodies vis-à-vis their members. Once the statutory provisions have been complied with the religious bodies have perfect freedom to impose their own discipline on their members and on the marriage ceremonies. This includes a decision by the religious bodies to marry or not to marry the parties presenting themselves for marriage. The State does not interfere. The religious bodies still exercise their discretion and apply their own laws as they choose to their own members.

As special licences have been mentioned more than once, I should emphasise that before a marriage under special licence is solemnised the requirements of sections 1 and 7 of the Bill must be complied with. The special licence provision does not operate to cancel the requirement of these two sections. All the churches, including the Catholic Church, have agreed to this.

In conclusion, I wish to say that the vast majority of people in this country regard marriage as a sacrament. Where people are subject to the discipline of the church to which they belong. Any of the changes being made here do not secularise the institution of marriage or anything else in the country. If we look at certain unnamed countries in Europe where there is a great deal more freedom and a complete absence of control by any church, there is nothing we need look up to or wish to copy in relation to our state of society, however imperfect it may be.

As the person who drafted the amendments referred to by the Minister, I should like to express my sincere welcome for the amendment he has put down and for the spirit in which he recommended it to the House. It is identical to the spirit in which I put down my amendments. I am glad to hear of the measure of agreement which has been reached on its substance. With regard to the drafting of the amendment, the Minister's draftsmen made a better attempt than my patchwork one. Therefore I do not propose to move my amendment at the appropriate time.

It is quite unreasonable to expect that the experience which the various churches have built up of marriage over the years will be in some way cast aside by the stroke of a pen. The Minister has already referred in very complimentary terms to this experience of pastoral responsibility which all the Christian churches and other groups in Ireland feel with regard to marriage. Nobody is in dispute on this matter. There are many more positive aspects to it than are generally acknowledged.

It is interesting to note that part of the representation for the alteration of the section originally presented to the House came from religious bodies. It is useful to examine the motivation behind this kind of request from the religious bodies. If a religious body ask for the exclusion of themselves from marriage legislation of this kind it is not because they feel that they and the other religious bodies involved have no function with regard to marriage. It is more likely because, while there is a large measure of overlap between Christian marriage and civil marriage, especially in this country, there are times when that overlap can lead in certain circumstances to the devaluing of what those people believe to be a very important institution in the light of their church and of its members.

I differ somewhat from the Minister in relation to the last two sentences of his statement. We should be very careful in assuming that if X follows Y therefore Y is responsible for X. We should be very careful not to assume that if two events follow each other in time, the second is necessarily the consequence of the first. This is especially true in regard to matters such as marriage legislation, public morality and so forth. There is a school of thought which exists in this country as elsewhere which holds that if you take certain legislative steps and they are followed by the growth of a permissive society the growth of the permissive society is intimately and causatively linked to the legislative steps which have preceded it. We must be very careful about this and we should all refrain from making vast predictions of a sociological kind which would not, I believe, be made by any expert in the discipline of sociology itself. It may be true to say that events are related to each other but to describe them as cause and effect seems to run the risk of gravely oversimplifying the situation and even, perhaps, of misrepresenting it.

I welcome the Minister's amendment wholeheartedly and I do not propose to move the amendments in my name.

I think the Minister's amendment is an improvement on the Bill as originally introduced. I hope the Minister will not mind my saying that I had intended to move amendments to the same effect and had almost put pen to paper when the Minister's amendment arrived in the post.

I have only one brief comment to make on the amendment. It is, perhaps, a matter of drafting or of interpretation. I notice that in the new subsection (6), which wholly reproduces the old subsection (7), an offence is created in "knowingly solemnising or permitting the solemnisation of a marriage which would not be valid in law". It is a small point but I should like the Minister to consult his advisers as to whether this phrase is a bit vague. Who is the person envisaged as permitting a solemnisation? Is it a parent or guardian or is it the religious superior of the minister of religion who solemnises the marriage? At first impression the expression "permits the solemnisation" is very vague. When we are creating an offence, as is the case here, we should be absolutely specific about the kind of person who may be penalised under the section.

I welcome the Minister's amendment in the spirit in which it was made. My sentiments are very similar to those of Senator Horgan. I would have supported the Senator's amendments but I am very glad that the Minister has redrafted this section in a way which overcomes any objections I would have had to it. I should like to acknowledge the way this was done and I am very happy to support his amendment.

I should like to respond to the tone which the Minister adopted in introducing this amendment. However, we should not overlook the importance of what we are doing today even though it affects, on the Minister's figures, only 30 cases in a year. The State is proposing by this amendment to take away powers which have hitherto been vested in the authorities of the churches mentioned in the section for which this section is to be substituted.

It is important that we realise that at present—for example, take the church which provided 57 of the cases over the two-year period mentioned— the canonical requirement would not be the age of 16. There is an academic clash as to what is to be the State law and as to what would be the canon law. If I understand the position correctly, the church and State are as one in viewing as undesirable marriages those that take place between persons under the age of 16. The church in question, which provides the largest number, will be glad enough to be able to say to people under 16 that they cannot marry because the law does not permit them to do so unless they get an exemption. Therefore, it is important to recognise this as an academic clash.

While I see the logical desirability of what is proposed, I do not see the objection to leaving in the alternative that was contained in the section for which this section is to be substituted. For example, with regard to the proposal before us, one knows that the exemptions that are required at present can be obtained free of cost to the persons concerned. I do not know how this will operate in the future. I should like to know whether additional costs will be imposed on those young people if they have to obtain exemptions which may not be incurred by them at present.

I find the language of subsection 3 (b) curious, it states:

It may be made informally through the Registrar of Wards of Court in accordance with the rules of procedure.

I do not know how one makes "informally" something which has to be made "formally", that is to say, in the form which will be prescribed in the rules of procedure directed by the President of the High Court. Are we to have as a result of this regulation 30 new causes of action per annum in the High Court? What is the position of somebody, afraid of the courts but not of his priest, who feels that he needs the assistance of a solicitor? Is there any procedure whereby the cost of that service will not fall on the unfortunate applicant for exemption?

I wonder if the Minister has considered the possibility of taking additional powers to himself to settle some scheme whereby the cost of this would not necessarily be borne by the applicant. I know he has gone a certain distance in providing that no court fees shall be charged, but we all know that court fees are a relatively small part of the court costs. If there was any question of employing lawyers, this would result in a cost which does not arise at present under the existing provisions. Under the provision contained in section 3 (c) it may be heard and determined in private. Surely this should read "It shall be heard and determined in private."

At the moment if a boy or girl in this sort of situation wishes to get an exemption, he or she is assured of total privacy in relation to the proposed spouse. Surely the same assurance should be in the statutory provision which is to substitute for the existing matter. Should the State not take steps to regulate that there will be no delay involved and that the rules will provide that the matter must be dealt with within a particular period, that it cannot get into somebody's delayed list and that they suffer as a consequence?

There is one particular paragraph of a subsection in the existing section which is missing from the proposed new section. I think it particularly unfortunate—I know there was a criticism made in the House on Second Reading which unfortunately I was not able to attend—in regard to the language used. I am referring to subsection (3) paragraph (c) which reads:

it shall not be granted unless the place of residence of the person in respect of whom it is made has, during the period of four months ending at the time of the application, been within the State,

There is no similar provision in the United Kingdom at the moment, so what is to prevent a flood of people coming here to take advantage of this section, to look for an exemption, even though they may have been residing here for only a relatively short period? Perhaps the Minister will tell me that the court in such a case would not regard there being in existence a serious reason for granting the exemption. However, I am not sure if the court would be necessarily free to regard, in the absence of provision about residence, this as an absence of a serious reason.

Again, I know that on Second Reading, some criticism was made about the provisions of paragraph (b) of subsection (3), which dealt with the considerations of propriety, and part of which reads:

(ii) the welfare of the person in respect of whom it is made shall then be the paramount consideration and, in considering that person's welfare, regard shall be had to the religion professed by him or her and his or her moral, physical and social well-being.

The main burden of criticism of that paragraph was the ordering of considerations of propriety in priority to the other matters. I should have thought it desirable to give some criteria to the court as to what they were to look to in determining what were the matters to be examined to determine the person's welfare. I know that in this the Minister is using language which is taken from the United Nations Convention. However, I believe that the language in the section which we are supplanting was the language which was used in the original Marriages Bill, 1965, and as seven years have passed, I wonder could the House be given a little more information as to why it has been decided to depart from language which I thought was helpful. I know that questions do arise for interpretation as to what would be regarded as moral, physical and social well-being, but these are just the sort of matters which courts are there to determine and to give meaning to.

I, too, should like to welcome this amendment. While I was not a contributor to the Second Stage debate on this Bill, I was aware that the section as it stood then was the result of a long period of consultation between the interests concerned. At the same time I recall that the Irish Council of Churches made a comment on the Bill, a comment which is fully recognised by this amendment. Legislation of this kind is not only desirable in an abstract sense to do a job effectively and well, but it is also desirable that it should be legislation which should have the consent and approval of all the parties concerned. It is therefore very satisfactory that the Minister is in a position to say that all the church bodies involved have agreed to this amendment.

In looking to the future, we are discussing, in a sense, a section of a piecemeal nature. The Minister is correct in saying that this amendment is a token of the type of approach that is required for the full matrimonial code in the future. For that reason also I welcome the tone of the amendment. The Minister's appeal to all concerned with problems of marriage guidance to deal with them is also timely.

On details of the amendment, I followed with interest what Senator FitzGerald had to say and would take issue with him on some counts. There were a couple of points which appealed to me but which he does not appear to find agreeable, and I should like to say why they struck me as being worthwhile. First, I was extremely glad to find in the amendment the use of the word "informally" where court procedure was concerned. I think that, particularly in the area of family problems—becoming known as family law —many are probably dealt with in an informal way. Yet it is desirable that a body like a court should lend its authority, experience and sanction to whatever agreement or decision may be made in an informal way. There is a problem here of combining formality and informality and our present patterns and systems have depended too much on formality. For that reason I find the use of the term "informal" attractive.

I understand the point made by Senator FitzGerald, when he referred to hearings of this kind being heard and determined in private. I found the wording, as proposed by the Minister, quite acceptable. I can envisage cases where people seeking an exemption under the terms of this amendment might feel that some issue of public importance was concerned, that there was an important point at issue which they might consider should have the appropriate public openness that one associates with most court hearings. Because this amendment envisages that possibility I found the word "may" in that context quite acceptable. I think Senator FitzGerald conceded this later in his contribution. I welcome the provision that no court fee should be charged in respect of any such hearing. I agree with him that it is desirable that as few costs as possible should be involved in hearings of this kind and I thought this amendment had met and recognised that important fact.

I think Senator FitzGerald is right in what he said in connection with paragraph (c) of subsection (3). What may be in the draftsman's mind is that the Constitution provides that saving in limited cases, such as are prescribed by law, the administration of justice must be public; and it may be that the draftsman thought it would be more deferential towards the Constitution to express the thing in this way. If such applications heretofore have been in private, as they have been when conducted before religious authorities, it seems to me to be regrettable if an equal requirement is not going to be built into this legislation.

I can see how Senator Keery reasons his point but I cannot imagine a practical case such as he envisages arising. I cannot imagine a case in which parties looking for permission to get married at the age of 15 would wish a matter of this kind to be made public. If such a case were to arise it could be accommodated by extending the paragraph so as to provide for the protection, which privacy represents, being waived, not by the parties because they are only children, but by guardians or parents on their behalf.

I do not doubt the sincerity of Senator Keery's contribution on this but I cannot imagine this being a practical problem. It would be better to do as Senator FitzGerald has suggested to convert "may" into "shall" so as to ensure that a private hearing be made mandatory. Let us not forget that the kind of case in which applications are going to be made under this subsection will be sad cases, very often arising in conditions which Senators can very well imagine, and they will not in the normal course of events wish to have the case made more public than it already is.

I should say in relation to this whole matter that I am not an expert on the marriage laws of this country, which go back a long way. I have studied the character of this Bill and I think I can answer the points which have been raised by Senators FitzGerald and Kelly.

Senator FitzGerald raised the question about possible delays in dealing with the application. I believe that these applications will be processed quickly and through consultation with the Registrar of Wards of Court, that he will understand that there should be no undue delay in dealing with them. We need not worry in connection with possible delays. There was a question about the court not needing the same guidelines as were suggested in the first version of section 1, in which the person's welfare and regard was to be considered and also his moral, physical and social wellbeing. It is true to say that, once the courts decide this matter, they would only need the United Nations direction or suggestion in regard to this, and one could argue about such a matter for a long time.

I believe that, with their knowledge, the courts should be able to make use of the guideline indicated in the section and in view of the very young age of marriage proposed they would automatically take into account all the social implications and reasoning of propriety. I cannot imagine that they would act indiscreetly in connection with this.

Senator Kelly referred to section 1, subsection (6), under which a person can be held guilty of an offence who solemnises or permits the solemnisation of a marriage which is not valid in law. I understand that the proposed celebrant of the marriage or his superior is intended to be the person referred to in that; that would be the local parish priest, the clergyman of any religious denomination or the Chief Rabbi, who could be charged. If the Registrar of Marriages made a mistake the could equally be charged. If anybody else is involved to any criminal extent I understand that this is a matter for the courts to decide. The court could judge somebody in a criminal charge of this kind. It is really a matter for the courts.

I beg the Minister's pardon. Could I just ask him to consider whether the courts will find the clause, as drafted, a sufficient guideline? They have to take the law as they find it. It is not necessarily the best thing to throw on them the onus of trying to decide what these two Houses have in mind when we are not too clear ourselves.

I understand that subsection (6) deals with this.

So that parents could be brought within that section— for example, a parent who connived at a solemnisation of this kind.

I suppose if the court decided that, yes. In relation to this section, Senator FitzGerald suggested that there might be a possible clash between civil and church law. I have already indicated in my reference to the new section that the courts will decide the legal question and the religious bodies can then operate without hindrance. If the court should decide that a couple should be permitted to marry, one or both of whom were under 16, it is open to the clergyman of the religion to whom the couple belong to say nevertheless he would not marry them because he did not approve of the court's action or he thought that they should not marry. Then they could only marry in a registrar's office and the registrar could not refuse to marry them once the court had given its decision in the affirmative. There is no possible clash between civil and church law. There might, on some conceivable occasion, be a clash between the views of the church concerned as to whether, even if they received permission, it was right and proper to marry them within the church and according to a church formal solemnisation of marriage.

A question was raised about the use of the word "informal" in subsection (3) (b), that an application could be made under subsection (2) "informally through the registrar of Wards of Court". I understand that a letter or a personal application can be made to the registrar of the Wards of Court in this connection: The hearing can be in private and this is going a great distance to help the people concerned. If the person wishes to employ a solicitor he may do so, and the word "informally" was used because of the very informal character of the application by means of a simple letter made to the Registrar of the Wards of Court. I cannot get into a discussion with the eminent Senator FitzGerald as to whether this is used in other legislation in connection with the courts, but I am told that it is satisfactory in this connection.

Senator FitzGerald raised another question on section 1, subsection (3) (c), in connection with determining cases in private. I am informed that, once the courts are going to decide these cases, they must have some discretion. They would be held in private normally, but there might be some occasion in which the case would be heard in public—for instance, if the parties thereto had established particular reasons for being married which they would like the public to know about. But these would be rare and the judges could be trusted in this regard. I ask the leave of the Seanad to make a typographical correction in section 1 (1) (ii). I quote:

...shall not apply where exemption from it is being obtained before the marriage from the President of the Court or by a Judge of that Court...

This is bad English and the word "by" should be omitted.

Purely verbal corrections can be made without the permission of the House. The word will be eliminated from the final version of the Bill.

I should like to ask the House whether without it being specifically stated in the Bill an appeal will lie from the President of the High Court or a judge of the court to the Supreme Court. Perhaps the Minister's advisers will tell him and he can tell the House whether that automatically follows under the existing rules of court or whether this Bill ought to contain specific provision for an appeal in the event of the President or other judge of the High Court refusing the application.

Section 1 (3) (f) states:

No further application in respect of the marriage may be made under that subsection.

That means there is no appeal to the Supreme Court.

I had taken that subsection to mean that the application could not be renewed before the same judge. If the intention under subparagraph (f) is to rule out an appeal it should be stated in so many words. Perhaps Senator FitzGerald will comment on this. Subject to what other lawyers in the House may say, the word "application" would not suggest to a lawyer an appeal to a higher court. I understood paragraph (f) to mean that once the matter had been settled, whether finally by the judge of the High Court or on appeal, it could not be renewed before the same judge. If the intention is to rule out an appeal, that should be definitely stated. I might not be in favour of ruling out an appeal to the Supreme Court but the word "application" would not suggest to a lawyer something which covers an appeal from an originating application.

I am advised that the words "no further application in respect of the marriage may be made under that subsection" applies to a second appeal either to the President of the High Court or to the Supreme Court.

The provisions of subsection (3) refer to subsection (2). Subsection (2) speaks only about applications in the High Court. It states "under subsection (2)," and that seems to limit the exclusion of further applications to applications in the High Court. I am not trying to trip up the Minister here. I should know the answer to this and it may be that the ordinary rules of the High Court would give that answer.

I agree with Senator Kelly on this. As I understood subsection (3) (f), it meant that having come in one month the same people could not come the next month or three months later to the same court. I did not understand it to exclude the right of appeal which I would have thought would require to be expressly excluded in the section if it is desired to do so.

The Succession Act, with regard to this matter of proper provision for children, has a statutory requirement that the applications where children feel they have not been properly provided for shall be heard in camera. The Minister might consider the desirability of this. The Minister did not deal with paragraph (c) of the existing subsection (3) which excludes people who are not here more than four months. Perhaps the idea was to stem the tide, as there is not a similar kind of exemption provision in the British law. This may have been inadvertently left out in the new section as it would be desirable to have it inserted in some form.

It would be sufficient to leave it to the President of the High Court to make a decision in regard to that matter. A number of the changes in this section were made because the President of the High Court is now to decide all the cases and not clergymen of various denominations. That was the reason why the period of residence was left out. I can say nothing more about the appeal to the Supreme Court. If one of these 30 persons who made applications for marriage before age 16 years chose to appeal, the Supreme Court could decide whether to hear the case or not. It is most unlikely they would appeal.

I should like the Minister to be clear on what we are saying. The effect of paragraph (f) is not to rule out an appeal to the Supreme Court. All the paragraphs in subsection (3) refer to applications under subsection (2) specifically. Paragraph (f) states:

No further application in respect of the marriage may be made under that subsection.

Subsection (2) does not mention an appeal to the Supreme Court. Possibly the Minister's Department intends to rule out appeals. If so paragraph (f) does not achieve this.

This is a matter of opinion. We have been told that in the ordinary way no one would appeal to the Supreme Court on the basis of subsection (3) (f). If they do, the Supreme Court will have to decide the question.

I am sorry to string this out, but is it the position that the Minister or his Department do not know what this section means and are expecting that the Supreme Court will sort it out for them? It is not right to throw this burden on the courts. These Houses ought to know what they are stating and it should not be left to the courts to make up our minds as to what we mean. I am not trying to take the Minister at a disadvantage, and perhaps the answer to this is evident, and it may be that, general provisions in regard to the High Court confer a right of appeal automatically to the Supreme Court unless it is excluded. This may be the law. I suspect it is, but, if so, I assure the Minister that paragraph (f) does not alter it. If the intention of paragraph (f) is to exclude an appeal to the Supreme Court it will not achieve that purpose and cannot achieve it on the face of the section as it stands.

I should like to ask the Minister the meaning of the phrase occurring in section 1 (3) (a) "without the intervention of a next friend". I do not know what this means in legal terminology.

Again, I should like to underline what I consider to be a very important principle which this amendment establishes and offer my congratulations to the Minister and his advisers. He has separated clearly the functions of church and State. In doing so he has strengthened the position of the secular and religious authorities.

The explanation of "the next friend" is to enable a minor to make an application to the court without a person being necessarily over 21 years old making the explanation.

The minor can make the application himself.

Amendment agreed to.
Amendments Nos. 2 to 6, inclusive, not moved.

The acceptance of amendment No. 1 involves the deletion of section 1.

Section 1 deleted.


Question proposed: "That section 2 stand part of the Bill."

Has the Minister given consideration to the comments made on Second Reading regarding the possible effects of the adoption of this section in relation to depriving parties to a marriage that has been solemnised in Lourdes of the right to set it aside on the grounds that it was not valid? Two views could be taken of this section. One is that it does not go far enough in so far as it does not provide for a future situation of a like kind. I would not agree with this view. The other view is that we need not worry too much about this because we only know of a certain limited number of cases to which it applies. I doubt if anyone has exhaustively examined these cases. We may find parties to such marriages who might be entitled to claim a right that the marriage in fact was not valid. This might have an important consequence on property. By adopting this section we may be depriving them of a right which they now have. Alternatively, we could add a subsection to the effect that the benefits of the section would be open to anybody who made application within a limited period of time.

Perhaps the Minister would give consideration to this point between now and the Report Stage. When people wish to break up a marriage for some reason or another they rake around looking for excuses and reasons. Perhaps we may be taken one from some party which could have important consequences to him, as to the children of that union or the effect of destination of property affected by the marriage, which it must be presumed is at the moment invalid without the benefit of this section.

We went into all of this in great detail. The section has been drafted in such a way that, if there are matters that are left over for further decision, it is the courts who must decide on them. The section, as drafted, is sufficient to cover these matters. There are only the 33 marriages. There are no others. We are not aware of any difficulties in connection with them. We have received no information to that effect. It would be the function of the courts to interpret this section in relation to any of the points raised by Senator Alexis FitzGerald.

Question put and agreed to.
Sections 3 to 6, inclusive, agreed to.
Government amendment No. 7:
In line 26, page 6, to delete "twenty-one" and to substitute "eighteen".

In section 7 we have settled 21 years as the age under which parental consent to a marriage was necessary. Section 18 of the Bill permitted the Minister by regulation to reduce this age. My intentions were to reduce the age to 18 years if the voting age was so reduced. Now that the referendum results are available it is desirable to settle the provision in final form in statute law rather than in regulations under section 18. The present amendments are being moved to substitute the age of 18 for the age of 21 years in the marriage laws. In proposing to reduce from 21 years to 18 the age for which parental consent is needed I must emphasise that all that is being done is to modify a statutory requirement. I am not saying that parental and pastoral guidance and care of the churches are no longer necessary. It is quite the contrary, as I explained more fully when speaking on section 1.

I am not in agreement with this amendment. In opposing it I should like to make it clear that I have not had an opportunity of consulting with my party about this. It may be that I do not speak for them. I do not think the result of the referendum has anything whatsoever to do with the age at which parental consent to marriage may be dispensed with. The official thinking which went into this amendment is of a very shallow kind. I say that without intending any offence to the Minister whom I know is as conscientious as a Minister can be. I suspect that it was not his initiative which led to this amendment being suggested.

I must ask the House to consider seriously whether the mere fact that we have now agreed, with the very long-standing support of my party, to give the vote to people of 18 years has anything to do with the age at which people who, in the estimation of most of us here, are little more than children can decide for themselves, without parental consent, when to get married. The process of thought which associates these two things is shallow and irresponsible. I absolve the Minister personally from these statements because I know he is neither of these things.

The idea is completely unacceptable that, just because of criteria which we all recognise as valid a young man is qualified to exercise a franchise in electing a Government, this young man becomes suddenly more mature by three years for the purpose of deciding, without parental consent, to take on himself for life the most burdensome obligations that a human being can undertake. If a young person of 18 years casts his vote wrongly, no great harm is done. If he or she is freed now from seeking parental consent for his or her marriage at the age of 18 years, something irreversible may be done which may result in unhappiness for the young couple and their future children. I feel very strongly about this. To associate a political right, which we have now given to young people of 18 years, to become adults for the purpose of casting votes with the personal right to make a vitally important decision without parental consent is fatuous in the extreme. It is difficult to think of language strong enough to describe it. These two things are completely separate.

We all know that at 18 years a person is in many respects physically mature, full-grown and so on—physically mature, idealistic, simple, and intelligent enough to exercise the franchise—but in many respects not mature enough to take on the emotional burden and the social and economic responsibility of founding a family. Of course there are such things as 18-year-old brides and bridegrooms but up to now people of that age have required, as the Minister has just told the House, the consent of their parents. They will still require this consent, until the passage of this Bill, up to the age of 21.

This is proper. Everybody with common sense would say, when they hear of people deciding off their own bat to get married at the age of 18, that such people are too young to know their own minds. That is the commonsense reaction of every ordinary Irishman and woman when they hear of teenagers getting married. I know there are special cases of particular hardship and so on involving people much less than 18 years of age. The Minister has now effectively regulated these cases with the amendment in section 1. I do not see why, merely as a result of the referendum on the voting age, we should add three years of maturity overnight in this respect, which is quite a different matter, to what you and I know perfectly well are little more than children.

It is not 24 hours since I attended a meeting organised by the free legal advice centres in Dublin, at which a booklet was produced wherein these people instanced the enormous proportion of their work taken up dealing with unhappy personal relationships. Of that enormous proportion, a very large proportion is represented by marriages contracted at a very early age. They instance marriages contracted by 18-year-old people, who have three children by the time they are 21, with all of life still ahead of them and burdened with an indissoluble marriage. Then, as these free legal advice centres have discovered, all they want is to rid themselves of this obligation because they feel life has been unfair to them.

I am not going into the rights and wrongs of the law on marriage at that level—whether we ought to have dissolutions or annulments for people of immature years. I believe some work could be done in that direction. To remove that last safeguard of parental consent in the case of 18-20-year-olds merely because the people decided last week to give such people votes at elections is absolutely idiotic and irresponsible. I do not know whether I carry the rest of my party with me in this connection but I will not be associated with it and I shall oppose the amendment.

I do not think we are debating this in party terms. I am very impressed by what Senator Kelly has said. On Second Reading I stressed the fact that a large number of marriages in the younger age group do not survive. This is not due to a compulsive reason for marrying but rather a lack of reasonable and adequate preparation. This preparation should include a period of saving and a reasonable time for two young people to get to know one another beyond mere infatuation.

I do not know whether many young people would go along with the idea of waiting until 21. What impressed me in Senator Kelly's remarks was that many of the under-21 marriages do not make good marriages. The large number of people who must wait to get parental consent are protected from making a mistake in marriage. I do not regard this as being a party issue but rather a question of what is best for young people. The circle of young people with whom I have been in contact over the past five years are resentful of the fact that they must answer to their parents according to the law. On the other hand, I can see considerable dangers if when young people reach 18 they can get married. During the debate on the referendum we rightly argued that the age of maturity was reached earlier. This is so, certainly as regards an understanding of public affairs; but the age of maturity is not being reached at 18 in relation to a very serious long-term obligation such as marriage. I should be very interested to hear the Minister's views on this matter because it is entering a very important area, spiritually and materially, for the community as a whole.

I completely agree with Senator Brugha that this matter has nothing to do with party politics. It is of the first importance. Reflecting on this amendment, it seemed to me that the most important consequence of this Bill would arise on a ministerial amendment on Committee Stage in the Seanad. It is a very serious and important step on which I have the strongest possible views. I am completely opposed to the proposal to change the age of consent from 21 to 18. Logically, it does not follow from the decision of the people on what may itself be a dubious proposition. The people have decided on that matter which will be considered in terms of the broad issues of democracy, participation and so on.

During the course of my career I have had a lot to do with the problems of families. I agree with Senator Brugha that children are maturing earlier than before. I maintain the view that Irish children do not mature as early as British and European children, or have not done so up to now. We reach a mature age later than we like to think. I have seen people whose lives have been ruined by property being vested in them at 21, not alone 18.

I strongly urge the Minister to reconsider the position on this matter. A change of this kind ought not to be made until we have had a full, calm, sociological, objective examination of the position of marriages of children —that is what they are—of 18 years or more. It may be that there are stupid parents who refuse the consent which it is desirable they should give. The amount of damage these parents cause is much less than that which will be caused by foolish children exercising rights they should not have. There is the danger of a false logic contained in this matter because children are allowed to drive cars at 17—go killing people on the roads— to make wills at whatever age is stipulated at present and to vote at 18. There is a deceptive logic in thinking that, in a matter of such importance, this change should take place. The general law still remains whereby they do not come of age anyway until they have reached the age of 21. Senator Kelly will confirm my stand on that. If we are to have a fundamental change from 21 to 18 let us fully consider all its implications. I hope the Minister will, between now and Report Stage, consider the remarks made here by Senators as remarks made by people who are genuinely concerned for the welfare of the people whom they will affect.

Before the Minister replies, may I add a couple of sentences to what I have already said? I should like to ask him if his Department sought any advice from people who might know about such matters before proposing this amendment. Were people with pastoral experience or people with experience in social work consulted? The answer to that question may be "yes" but even if it is "yes" I believe the plea which Senator Alexis FitzGerald has made explicit, and which is implicit in what Senator Brugha has said, ought to weigh heavily. I urge him very strongly to reconsider this amendment and either to withdraw it or, if he insists on increasing the degree of independence of 18-year-olds, at least to subject it to some judicial consideration of a kind analogous to that which he has applied to the case of marriages under the age of 16.

I urge him very strongly to do this. I accept what Senator Brugha has said that this is not a question of parties falling out over an important matter. I urge him to consider very strongly this very serious change which we are in danger of regarding very lightly. This Bill will have to be returned to the Dáil anyway and I will be amazed if this change, even if passed by this House, will get through the Dáil without a fuss. I urge the Minister, once again, to withdraw this subsection or, alternatively, to reconsider it between now and Report Stage.

The suggestion to lower the age for marriage without consent is a very controversial one. It is true that a number of marriages are at present taking place between people under the age of 21 years. In 1969 there were approximately 20,000 marriages. In 1,237 of those marriages the age of the groom averaged from 18 to 20 years and in the case of 3,297 marriages the bride was between the ages of 18 and 20 years. This is a very difficult question to discuss. The question of what constitutes maturity in marriage is one that needs a great deal of definition.

We now have votes at 18 years. A minor can be appointed executor but he cannot exercise the office until he has reached the age of 21 years. He can acquire property and can make a will at the age of 18. He can enter into certain kinds of apprenticeship contracts and, of course, he is subject to the social welfare and health services as an individual once he is over the age of 16 years. In the case of marriages between young people in the age group of 18 to 21 years many of them succeed in compelling their parents to permit them to marry. I am not too sure that lowering the age for marriage without consent to 18 years would make much difference to the attitudes of young people. It is a very difficult question to answer.

I believe Senator Kelly has made a good point in this regard and I propose, on Report Stage, to leave the section as it was. It states:

The Minister for Health may, by regulation substitute for any reference to the age of 21 contained in any Act specified in the next subsection a reference to any lesser age.

Therefore, if we choose to lower the age of marriage without consent by parents it would mean that the regulation would have to come before the Dáil and the Seanad for special consideration.

We sent the draft Bill to all the religious communities mentioned in the Bill so that they could see for themselves that the age could be reduced, by regulation, from 21 to 18 years. Neither the Catholic Church nor any other denomination expressed any fear in any form in relation to the Bill. That included also the Council of Churches. So far as the religious authorities are concerned they did not express any fear on this question but, perhaps, it might be better to have the matter decided by regulation. I do not believe it is particularly urgent and so I propose, on Report Stage, to eliminate the amendments with the consent of the House and leave the matter to be dealt with by special regulation.

I am perfectly certain when the debate takes place there will be many different points of view expressed such as how far parents are able at present to prevent their children from marrying between the ages of 18 and 21 years. We have very few statistics on this matter. As Minister for Health I have to read through an enormous amount of sociological evidence in relation to psychiatric disturbances, broken marriages and deserted wives in an effort to establish social service councils, the necessity for which was best described in the Vatican Council II document on the duties of the laity. I have read a great deal about this matter. In America over half of the marriages between couples who are under 20 years are dissolved. I realise that a great number of unhappy marriages result because they take place too early but it has also been found that many marriages of people up to the age of 23 have broken up because the couples were totally immature.

Whether the incidence of broken marriages between young people who have absolutely no concept of how to frame a budget or how to share expenses in the form of wages, resulting in screaming misery in the home— there are thousands of those people receiving treatment at outpatients departments of psychiatric clinics— occurs more frequently between couples aged 18 to 21 years or 21 to 23 years is something I cannot answer. I do not think I can get evidence to support such a theory.

The very excellent marriage guidance counselling services that can be found in differing degrees from town to town and area to area admit that, as so often happens with voluntary services, the people who need their services most are not availing of them. I was told by the head of a very big marriage guidance counselling service that only 38 per cent of engaged couples in his area availed of the marriage guidance counselling service. He admitted that 80 per cent of the 62 per cent who did not avail of the marriage guidance service consisted of those who most desperately required to do so. This is a very, very serious social and moral problem.

With the leave of the House, when we have dealt with this section, I will withdraw the amendments and leave it as a matter for regulation.

An Leas-Chathaoirleach

The procedural position is that amendment No. 7 is being debated but has not been agreed to. If the Minister and the House were agreeable to the withdrawal of amendment No. 7 and if amendment No. 9 were not moved, this would have the effect the Minister requires.

I think the Minister has made a very wise decision, if I may say so, without condescension. It is a decision for which not only the House but the people will be grateful to him. It is the first time that I have seen a Minister in this House accede to a recent suggestion and it is an experience I shall not forget. Since he departed a little bit from the subject of the amendment in order to speak about general issues in regard to marriage, I should like to add one or two words to what the Minister has said about the difficulties experienced by many young married couples who are not able to budget. This is something in which the television service ought to interest themselves. Some years ago, the television service here tried to produce a programme geared particularly to low budget consumers and those of limited education. I am sorry to say that they failed and were forced by the advertisers to take their programme off the air. I cannot recall if the Minister present was the Minister responsible at that time, but I am sure he will not have forgotten that episode. While this is not entirely relevant to the Bill, I acknowledge the Minister's genuine interest in this and I appreciate and recognise the wisdom of what he has just done.

It has come from this side of the House also.

It was unanimous.

First of all, I should like to thank the Minister and to draw attention to an aspect that may not have occurred to his advisers. It is all very well to consult religious institutions in relation to a matter of this nature, and I do not wish to be the least bit facetious about religious orders and institutions, but they do not get married. The people who need to be consulted in such matters are the parents who in the past, because they had the legal right, were able to persuade their children to wait for, perhaps, one or one and a half years. I believe from my experience that it would work against good public policy if one were to take the step of reducing the age of consent to 18 years. I have met numerous cases of young people under the age of 21 years who wanted to marry where the parents had the legal right to prevent the marriage until at least 21. They were in the position of being able to say: "Well, can you wait until you are 20 anyway"? If you take that away, you take away another barrier.

I should like to refer to something touched on by Senator Kelly and which I mentioned on Second Reading. That is in relation to the whole area of young marriages and the responsibility of parents and the different religious denominations of which their children are members. Despite the type of advisory services connected with local authorities and with the Minister's Department and, as mentioned by Senator Kelly, Telefís Éireann's educational services, a large number of marriages contracted under 21 years have not survived. There is a big responsibility on public authorities to try to ensure a better education in regard to the preparation for marriage. It is important to the State that marriages should be long-lasting.

Amendment, by leave, withdrawn.
Question proposed: "That section 7 stand part of the Bill."

I am not clear as to what subsection (2) means. It states:

The foregoing subsection shall have effect subject to the proviso that the requirement of consent of a guardian shall not apply in a case in which the consent is refused or withheld, or in which the guardian is unknown, of unsound mind or of whereabouts which would be unreasonably difficult to ascertain, if consent of the President of the High Court (or of a Judge of that Court nominated by the President thereof) to the intended marriage is first obtained.

Does that mean that the consent of the President of the High Court can be a substitute for the consent of the guardian, where the guardian has first refused his consent, in which case the consent of the President of the High Court is the requisite consent? I think this is what it means but I should like to be sure.

I think it applies only if the consent of the parents is refused. If the Senator wishes, I shall read quite a complicated description of a rather highly complex subject, which goes back to the present law in regard to marriage.

Question put and agreed to.
Sections 8 to 17, inclusive, agreed to.

An Leas-Chathaoirleach

Amendment No. 8 has been ruled out of order.

Amendment No. 9 not moved.
Section 18 agreed to.
Section 19 agreed to.
Title agreed to.
Bill reported with amendment, received for final consideration and passed.