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Seanad Éireann debate -
Wednesday, 15 Jun 1983

Vol. 101 No. 1

Marital Breakdown Problems: Motion.

I move:

That Seanad Éireann notes with concern the increasing social problems caused by marital breakdown and calls on the Government to introduce legislation to enable the deletion of Article 41.3.2º of the Constitution which prohibits divorce.

In moving this motion I should start by removing one misconception which there may be about the movers of this motion. There is no intention on our part to encourage the dissolution of marriage. The motivation behind it is not that in any sense at all. We have no wish to destroy, or to facilitate, or encourage the dissolution of marriage here. We support to a certain extent the wording in the amendment about the protection of marriage in the Constitution and have no objection to that. All parties in this House, and probably all the independent Members agree about the first part of the motion which notes with concern the increasing social problems caused by marital breakdown. That is undoubtedly a problem which is growing here at a very alarming rate. What we disagree about, and it is apparent from the two motions we have down about it, is the urgency of the problem and the methods we should use to tackle it. It is very difficult in approaching this problem to get any figures about the extent of marital breakdown here. One of the difficulties is because it has never been recorded in the census but we know from the figures about deserted wives, and the allowance they are claiming, that in 1980 the figure was 10,000 and by 1982 that figure had crept up to 15,000, an increase of 50 per cent in two years. That does not take into account the exceptions, the deserted wives who cannot claim the deserted wife's allowance and that includes women under 40 with no children and those receiving £38 per week or more. That figure does not include many informal separation agreements, many formal separation agreements and many cases of marital breakdown which are not cases purely of deserted wives.

In talking about this problem we do not have any specific cast-iron figures. What we do know is that the problem now has reached chronic proportions and that must be recognised. I welcome the decision of the Government to include a figure for separated couples in the next census in 1986. All one has to do is ask any of the Deputies, certainly in urban areas, whether this problem is bad or chronic in their constituencies and I believe the answer will be a unanimous ‘yes' although they cannot put an actual figure on it. The figure quoted by the Divorce Action Group recently was that there are approximately 70,000 people affected one way or another by marital breakdown. That figure does not include children.

Why then do we bring in a topic like divorce to the Seanad? It is a somewhat unwelcome topic and it is extraordinary how seldom this topic has been debated in this House or in the other House. What we must do today is recognise the fact that it is a problem which is a matter of great urgency. It is a fact of life that written into our Constitution is a clause which states that no marriage can under any circumstances be dissolved. There is no recognition, as a result, of irretrievable breakdown of a marriage here. There is no recognition that such an intolerable situation can exist for both or for either party to a marriage or for the children of a marriage, no recognition that the marriage should be dissolved and that those who are involved in that marriage should get a chance to remarry. I do not want to go into any very specific, long or detailed cases. They have been quoted so often, but I believe natural justice requires that in certain situations a marriage should be dissolved.

We have heard too often of the problems of the battered wife, the alcoholic husband and the mental cruelty which exists in a marriage. I would like to ask whether it is the belief of Members that those who are sufferers, of both sexes, in situations like this should as a result of one mistake which may be the fault of one party or another, which may be a young and very adolescent mistake, be condemned to a permanent status as a result of this mistake? It defies all the laws of natural justice.

I came across one case the other day of a deserted husband whose wife left him eight years ago one week after they were married and he has not heard from or seen her since. It seems that that sort of a case defies natural justice. It seems wrong that this man should not be able to change his status in any way although his marriage is to all intents and purposes dead and irretrievably broken. Is it right that where children are suffering intolerable psychological and physical neglect, which is certainly the case in many parts of this country, especially in urban areas or even where they are suffering from tense, unstable marriages, they should be condemned to that state rather than have one stable parent? That sort of suffering is intolerable and ought to be ended. It is a massive social problem which extends through all levels and all strata of our society. The constitutional ban on divorce is a hindrance and a bar to the solution of this problem.

Divorce, which this motion was intended to be about, is undoubtedly a taboo word in our society. One has to look at what happened in the other House when this issue was raised by three Members recently. Only three Members stood up to debate it and to allow a Bill to go forward on a referendum to remove the Article in the Constitution which prohibits divorce. That is an example of political cowardice by the party politicians who decided not to debate the subject.

One has only to look, regrettably, today at what has happened in the Seanad where an attempt to specifically debate divorce, as well as the problems of marital breakdown, has again been avoided by the tabling of an amendment which obviously avoids the subject of dissolution of marriage or of divorce itself. Apparently, that word is still one which the political parties on all sides prefer to avoid.

Why was it necessary to amend my motion? I do not know why it was felt necessary to strike out the reference to the deletion of Article 4.3.2º of the Constitution which prohibits divorce. The reason, obviously, is that it is still a taboo word. There are two key phrases in the amendment which in principle I would support but in practice I am going to have to oppose. They are "supports the proposal of the Government" and "which will make recommendations on the protection of marriage under modern conditions and on marriage breakdown". That is all it is, a proposal of the Government.

We have already seen the difficulties that this proposal has encountered in the last six months. It is part of Government policy, undoubtedly, to set up an all-party committee. This proposal has been in existence for six months and we still do not have the all-party committee which the proposal was meant to set up.

It is of great interest after what happened yesterday in the Dáil when a Member asked the Taoiseach what was happening to the all-party committee. He replied that it has not yet been set up and he was waiting for talks with the Leader of the Opposition who wanted clarification on the terms of reference of the committee. When those talks will take place I do not know. How long they will take I do not know but we are heading for a situation where the all-party committee is already bogged down, where there may be disagreement on the terms of reference and where the weaknesses of all-party committees on this subject becomes very apparent. Even if an all-party committee is set up what we will see is that it will make recommendations. That is all it will do. The whole thrust of action which is needed on marital breakdown is being blunted by the proposal to set up an all-party committee because an all-party committee may not get off the ground; it will only make recommendations, if it ever reports, recommendations which the Government are under no obligation whatsoever to accept.

Originally the timetable for this all-party committee was that it should be set up in April 1983 and that it should report by the end of December 1983. Since yesterday that has apparently been put back. There is now an unspecified delay on the report of that all-party committee. In this morning's newspapers one of the more progressive members of Fianna Fáil on this issue stated that it was her view that this committee should take at least three or four years.

It is totally unacceptable that the problem of marital breakdown here should be delayed for three or four years. If an all-party committee is to be set up at all on this issue it should have a deadline and make recommendations immediately. An all-party committee has traditionally been a device for ducking, for burying and avoiding issues of this sort. I see no reason why the setting up of this all-party committee with no deadline on reporting, no guarantee of any report or guarantee of agreement, will not bury the subject of divorce. Indeed, I believe that this is the intention.

I should point out here that there was an all-party committee on the Constitution which reported in 1967. We are lucky to have in this House two Members of that all-party committee, Senators Dooge and Eoin Ryan. That all-party committee reported and recommended a change in Article 41.3.2º, a contorted change, but, for its time a somewhat enlightened one. I would like to ask what happened to that recommendation? What happened to the recommendation of that all-party committee on other constitutional changes such as the substitution of Article 3 by something else? The answer is, of course, nothing. That points to exactly what I am trying to say, that all-party committees of this sort or on this issue are a recipe for no action whatsoever but salve the conscience of a Government on problems which they find too difficult to tackle. What I would look for, and what should be looked for from the Government on this is action, a commitment. One would think that the problem of divorce had not existed here since the foundation of the State. One would think from their attitude on this that they had not examined this problem already. Either they have, and they have a view of it, or they have not in which case it is a disgrace that they have not examined the problem of marital breakdown and divorce. Every Government should have a view on a situation like this.

I would like to ask, has consideration been given to the problems of marital breakdown here since 1980? Has consideration been given to the issue of divorce? It is quite obvious to me that the Labour Party have a commitment to support the proposal for a referendum specifically in their manifesto. They have a duty today not to take the easy way out and refer this problem to an all-party committee which does not even mention the subject of dissolution of marriage, but to support the original motion which we have. It is straightforward Fine Gael policy — as far as I know — to refer this, for their own good reasons, to an all-party committee, although Young Fine Gael are totally in favour of a referendum. I would like to see a commitment from the Government to hold a referendum. The best possible timing for such a referendum would be May 1984 for two reasons. One would be that we have the European and local elections at that time. That would ensure a fairly heavy vote and it would be good for administrative reasons. It would also give the Government time to consider the implications of marriage breakdown between now and then. I accept that if they have not thought about this problem already they will need time to do it but that does not stop them giving a commitment to this House, and the people, to hold a referendum in that time and place before the people their specific proposals on the consequent legislation.

There is no reason why there should not be a simultaneous family proceedings Bill to deal with the situation in the intervening period. There is absolutely no contradiction between a committee on marital breakdown and a commitment to holding a referendum on divorce and making a recommendation on it as well. That will give the time for the preparation.

I would like to ask the House to consider what the situation would be if it was the other way around. We have had a recent and very divisive debate on another topic to amend the Constitution. What would be the attitude of the Government, or the Opposition, or of any party, if they were attempting to write into the Constitution a clause of this sort which prohibits the dissolution of marriage? We would find it to be even more divisive than the debate on the amendment to the Constitution which we have just so painfully gone through. If that is the case — I do not believe anybody in this House will stand up and say at this point in the 20th century that we must put into the Constitution a clause which prohibits divorce — then there is obviously no defence for keeping it there any longer.

Whatever about the last debate we had in the House, and the enormous problems which are still unsolved on it and whatever the arguments were about it, this stands out even more as a denominational clause in our Constitution. It is undoubtedly one which preaches the doctrine of one Church against the doctrine of all the others. Whatever the arguments about the amendment to the Constitution about abortion, and the possible denominational implications there, this is a straightforward insertion into the Constitution of the beliefs of members of one Church and not the other. No Protestant Churches have any objection to the deletion of this Article, nor do the Jewish Churches. Indeed, many members of minority religions regard divorce when marriage has irretrievably broken down as a civil right and one of the tenets of natural justice which they enjoy.

Where, I wonder, does this Article leave our pluralist society to which so much lip service has been paid recently? Where does it leave the constitutional crusade? I would have thought that this was the one Article which sticks out a mile as being a case for the constitutional crusade. This is the one truly and indisputably denominational Article in our Constitution. It is uncomfortable of course but it is more ammunition for the majority in Northern Ireland if we refuse to tackle this problem. If we duck it today, as it appears we are attempting to do, it is more ammunition for the majority in Northern Ireland to say: "Look, there you are, they will not even tackle the problem of divorce; Protestants in the South are discriminated against, not just by law, but actually in the Constitution." That is an argument which it is very difficult to answer. If we do not get moving on this, the most obvious denominational aspect in the Constitution, the crusade which has already been put in cold storage for a while will become a total fiasco. We have certainly had a step back from that crusade with the amendment. Now it appears it is going to die because divorce will not even be tackled here.

Party politicians are perhaps a little bit naive on this subject because it is a very thorny one for them. They believe that public opinion may not, and cannot, stomach us taking on this subject, that it will be politically difficult for them to promote such a referendum. This is another case — it may still be the case with the amendment — where party politicians have possibly got it wrong again, that they are once again leading public opinion from behind. Public opinion, in fact, is moving in favour of the deletion of Article 41 of the Constitution. The opinion polls I saw recently which were taken by totally reputable opinion poll organisations showed that public opinion has moved dramatically on the issue of divorce in the last few years. The latest one showed that 53 per cent of those polled were in favour of divorce under some circumstances and 31 per cent were against it under any circumstances. They also showed a very significant factor, that the vast majority of young people here were in favour of the introduction of divorce in some circumstances. That is a dramatic move and a move and a mood which party politicians should ignore at their peril. It is a difficult subject but they are out of touch if they are frightened of this subject and if they want to keep kicking it under the carpet.

Why, we must ask ourselves, are we the only country in the EEC that does not allow divorce under some circumstances? Why are we the only country in Europe, except Malta which has a very small population, which does not allow it and that includes the Eastern bloc countries? Why are we so far behind and sticking out on a limb? It is no good to say: we are a Roman Catholic country with a Roman Catholic ethos. Similar countries, Spain, Italy and Poland who have a similar Roman Catholic ethos allow divorce under certain circumstances. The prohibition has gone there and we are the only one left with that prohibition.

I do not underestimate the great problems which will arise after the deletion of such an Article. Of course there will have to be very important legislation to follow. There will have to be a family proceedings Bill. There will have to be great care taken to protect marriage. Nobody wants quick divorces under any circumstances when a couple just have a row. There will have to be counselling. There will have to be an onus on legal advisers to let parties in difficulties realise the counselling services that exist. There will have to be mediation services. There will certainly have to be continuous encouragement to keep couples together and discouragement of divorce. There will also have to be a recognition that there are some cases where marriage has irretrievably broken down and where it is totally unfair for couples to be forced to stay together. There will have to be family courts and there will have to be definitions decided by the family courts about when marriage has irretrievably broken down. An enormous amount of work will have to be done on what happens to the children and the welfare of the children. There should, obviously, be no dissolution of a marriage until the welfare, custody and maintenance of the children is looked after. There is an enormous amount of hypocrisy talked by those opponents of divorce who say that it is unfair on the children to have a divorce. There is conflicting evidence about that as there is on most matters of child psychology. In many cases it is beneficial to the child that their parents should separate and be divorced rather than they should live in a very tense and psychologically damaging atmosphere. There will have to be legislation on property and the rights of property of spouses in this situation. That still does not prevent the Government setting up the committee, doing their research and making a declaration at the same time that they are in favour of a referendum. We are not asking for any more in this motion. We are asking for a referendum on the dissolution of marriage. We are asking the Government to do it, not immediately, but to set a date in 1984 to give them the time to prepare the way to introduce the legislation and let the public know what legislation is to follow.

I do not believe that an all-party committee will ever take divorce to the stage of legislation or referendum but that it would become bogged down. I do not believe a delay on this is any longer defensible. We have no timetable. We do not know when we are going to get recommendations; we do not know what they are going to be and we do not know whether they are going to be acted upon in any way. I would like to see in this for once a sense of reality from the Government and a recognition of the problem. I do not believe that a prohibition on divorce is a matter for the Constitution of a pluralist liberal state which most of us aspire to.

In rising to second Senator Ross's motion I would like to say something about the back-drop to my thinking on the subject of marital breakdown and divorce. It is quite likely that in this short session on a very large, wide-ranging topic we might lose sight of the fundamental significance of taking a vow, and a sacred vow at that, at an altar before God which is central to the feelings of people in Ireland.

What I have to say should not be interpreted in any way as an endeavour to belittle the sanctity of the vow or the meaning of it. I wonder if in Ireland we have paid enough attention to the difficulty that confronts people when, for various reasons, there has been a breakdown in their own lives and where there has been some break between themselves and the social mores with which they are associated.

Sitting suspended at 5.30 p.m. and resumed at 5.45 p.m.

I hope and pray that perhaps the Chair may put his stop watch back to zero. I was trying, briefly before starting into the main meat of what I would like to say, to suggest that in any country we have separate and complementary functions for the holy men on the one hand and the politicians on the other. We who proposed the original motion did not do so at all lightly. In doing so we were challenging both Church and State and suggesting that their functions should be both separate and complementary. The holy men, be they Catholic, Protestant, Jewish or Islamic, will wish, and quite rightly in my view, to hold aloft the ideals of their faith and to invite people to become whole, to reintegrate them in wholeness and to keep society as far as possible integrated as a whole. On the other hand, the State will have to, and should, acknowledge that we are less than whole. This is the conflict. Society is far from perfect and it is necessary for us to have the machinery to deal with our limitations as well as our differences. Therefore I will maintain throughout what I have to say that an absolute ban on divorce exposes weaknesses in the attitudes of the institutions of the State as well as in the inabilities of the Church. On one hand, we are denying the consequences of irretrievability in the breakdown of marriage as a fact of life. On the other hand, we are denying the possibility of reintegrating persons whose bonds have been broken and whose integration in the social milieu in which they mix has become fragmented. That is the challenge I pose to both Church and State. In doing so, I note that in the original Constituion of 1932 of the newly formed Irish Free State, Article 8 guaranteed, subject to public order and morality, freedom of conscience and restriction on the imposition of any disability on account of religious beliefs or religious status. At that time there were no divorce courts in Ireland. Irish residents who wished to appeal a divorce had to do so by way of a Private Bill in the Westminister Parliament. Following the establishment of the new State three such Private Bills were presented to it. Mr. Cosgrave, the Prime Minister at the time, reacted to this in an extremely sharp and perhaps totally predictable manner. He said:

I consider that the whole fabric of our social organisation is based upon the sanctity of the marriage bond and that anything that tends to weaken the binding efficiency of that bond strikes at the root of our social life.

However, he did not question that the bond might be already irreparably weakened by the time the divorce was sought, nor did he ask what about the factors both in the home and outside of the home that might be associated with its weakening.

In the debate in this House in June 1925 on the subject of divorce legislation W.B. Yeats spoke as follows:

You are going to have indissoluble marriage but you are going to permit separation. You cannot help yourself there. You are going to permit young people who cannot live together, because of some intolerable wrong to separate. You are going to invite men and women in the prime of life to accept for the rest of their existence the law of the cloisters. Do you think you are going to succeed in what the entire of Europe has failed to do for the last 2,000 years? Are you going to impose the law of the cloisters on those young people? If not, you are not going to raise the morality of this country by indissoluble marriage. A great English judge speaking out of the immensity of his experience said that there is no cause of irregular sexual relations so potent as separation without the possibility of re-marriage.

Twelve years on in 1937 the divorce issue was again raised during the debate on the new Constitution. It is interesting to reflect that in discussing the matter contained in Article 41 the debate had to be stopped on no less than two occasions because there was not a quorum of 20 Deputies in the House. It is also interesting to reflect that the 1937 Constitution that contained Article 41.3.2º which we are debating today was eventually ratified in a referendum by approximately 685,000 votes in favour but there were also over 525,000 votes against — hardly an overwhelming result. In the same Constitution, as we all know to our cost, were the controversial Articles 2 and 3 that imply a claim to Northern Ireland. We should ask ourselves what might have happened had it been possible to canvass the Northern vote to which these Articles lay claim. Would the Constitution have been ratified? Would there be a ban on divorce today? If there was not a ban on divorce, would we, as Senator Ross asked, be proposing to put one into the Constitution?

In respect of Northern Ireland, it seems relevant again to quote further from that speech by Yeats when he said:

It is perhaps the deepest political passion with this nation that North and South be united into one nation. If it ever comes that North and South should unite, the North will not give up any liberty which she already possesses under her constitution. You will then have to grant to another people what you refuse to grant to those within your borders.... You will not get the North if you impose on the minority (here) what the minority consider to be oppressive legislation.

Whenever unity in marriage cannot be achieved or sustained what do the Irish couple in the Irish Republic have recourse to? They can live out an unhappy life of controlled frustration. They can live out an unhappy life of uncontrolled frustration expressed in violence and illicit affairs. They can separate through agreement with or without legal enforcement, such as that provided by High Court order on the grounds of adultery or cruelty. They can obtain barring orders, as I understand it, in the District Court or the High Court. They can seek annulment on the grounds of some defect which existed at the time of the marriage or preceding it. Finally, and perhaps most germane to the Ireland of today, they can seek divorce elsewhere — another English solution to an Irish problem.

Separation by law in Ireland does, at least, recognise that the marriage is dead. In the metaphysical view of the Church such marriage may well be indissoluble. In the eyes of the State it is to all intents and purposes irretrievably broken. By 1967, as the report on the Committee of the Constitution shows, the problem at least could be ventilated openly and constructively in a less emotive climate than formerly. The existentialism of the sixties combined with the upsurge in anti-authoritarianism in the latter part of the sixties by western European youth, together with the effects of advancing technology, had produced enormous changes in social attitudes. Penetration by the media had been significant and the effect on the Second Vatican Council was remarkable.

There were even those who held the view — I hasten to add it is not mine — now much less fashionable than a decade ago, that the marriage institution itself was dated. In doing so, such people did not look at the spiritual and political challenges of a new era which were making marriage unstable, not only in Christian but also in many other societies too. It is in that area that I would certainly say that I welcome the idea of setting up an all-party committee, although as I hope to conclude, it is totally inadequate in relation to the original proposal which Senator Ross and I were making.

In advocating a more liberal attitude to marriage breakdown we should not seek to belittle the central sanctity of marriage bonding as the core and kernel for care, love, warmth and development in the social fabric. Therefore, we must challenge, not only our politicians, but also our philosophers, theologians, sociologists and all concerned people in this country to promote with urgency a fresh analysis of the forces and trends in society, and Irish society in particular, that has led to such an increase in acknowledged marriage breakdowns.

As long ago as 1967 the report of the Committee on the Constitution was drawn up and constructive recommendations were made with regard to Article 41. We must now ask along with Senator Ross, why so little has happened since that report was published? In the report that emerged 16 years ago criticism of retaining Article 41.3.2º was made and a modest proposal was put forward to see how it might be changed. The report notes, among other things, firstly, that the Article in question takes no heed of the wishes of a minority in the Irish Republic whose religion does not prohibit divorce. It also notes that absolute prohibitions in the Constitution appear even more rigid than the regulations imposed on Catholics as a result of the more liberal attitude following the Second Vatican Council, yet that original clause, 41.3.2º, was put in the Constitution as a reflection of Catholic morality on this issue. It stated:

There are several circumstances in which the Catholic will grant dissolutions of valid marriages or will issue declarations of nullity.

Thus it is that as long ago as 1967 it was acknowledged that you could be married to a second partner in accordance with the teaching of the Catholic Church, yet be in a state of bigamy before the Irish Constitution. In section 126 of that report it goes on, in relation to the ban on divorce, to state:

It is unnecessarily harsh and rigid and could, in our view, be regarded as being at variance with the accepted principles of religious liberty as declared at the Vatican Council and elsewhere.

Further, it was acknowledged that something had to be done to regularise the position whereby those with money, know-how and nerve could leave the country to obtain what more modest people were being denied. In this respect it is salutary to look at the implications of Article 42.3.3º which leads to some confusion in relation to succession rights with regard to divorces that take place outside of the Irish Republic.

The report suggests that the best course would be to delete this section altogether and use private international law as a means of coping with foreign divorce, adverting to Article 29.3. which specifically accepts the principle of international law. In acknowledging that you might go somewhere else for a valid divorce the report could be accused of implying that it is not divorce but divorce in Ireland that is wrong. Furthermore, it is not banned throughout the whole of Ireland. The people of Northern Ireland would like, just as you would, to live in a society without the strains and pressures——

The Senator has one minute.

——which encourage a degree of alienation which results in increasing marital breakdown. But they need to be reassured by this House that, in the event of us moving closer, that will not create a situation in which people will be obliged to face the future in the loneliness of isolation as the only alternative to bonding illicitly, with no legal protection, on the grounds that failure is final and a second chance is not to be tolerated.

I hope Senators will realise, while acknowledging the benefits of the all-party committee, that it is absolutely nonsensical that in this State in the twentieth century, with the problems that face the people of Ireland, with the vast numbers that are involved in marital breakdown, with the children that are involved, with the involvement of second partners, with the children of second partners, we have an absolute ban on divorce. In my opinion it is a disgrace that that should pertain. Furthermore it is a particular reflection on us that it pertains here in Ireland while people can go to England to obtain their divorces.

I move amendment No. 1:

To delete all words after "and" and insert the following:

"supports the proposal of the Government to establish an Oireachtas Committee which will make recommendations on the protection of marriage under modern conditions and on marriage breakdown and on any legislative or constitutional action that may be required."

If this amendment is accepted the amended motion would read

That Seanad Éireann notes with concern the increasing social problems caused by marital breakdown and supports the proposal of the Government to establish an Oireachtas Committee which will make recommendations on the protection of marriage under modern conditions and on marriage breakdown and on any legislative or constitutional action that may be required.

I am happy indeed that since the amendment was put down there has been agreement in regard to this Oireachtas Committee and I express the hope that there will be no further delay with regard to starting its work or indeed concluding its work.

Senator Ross, in moving the original motion, indicated that all there appeared to be between the original motion and the amendment was a question of difference in regard to the question of urgency. I do not think that is the main difference. The important thing in regard to this extremely difficult question is not for us to get an answer quickly but for us to get an answer which will be right and to get an answer which can be implemented. We have to realise when dealing with a problem such as this, a problem which is concerned with questions of human rights and questions of human morality, that we have to recognise the various stages. We can recognise four stages in the way in which any political community tackles such a problem. Firstly, there must be a clear recognition of the existence of that problem and of the nature of the problem. This is followed by discussion of the problem in all its aspects before we can reach the third stage which is an agreement, broad enough with regard to a solution, which will ensure the fourth stage which is the implementation of that broadly-agreed decision.

In tackling the very real problem that we face, this is the way in which we have to tackle it. If anyone asked me what is my personal opinion about the constitutional prohibition on divorce he has only to look at the report of 1967 to find that Senator Eoin Ryan and myself have already declared our position in regard to this. But it is not sufficient merely for individual Senators, individual citizens, individual Deputies, to give an opinion. If we are going to be able to carry this viewpoint into effect there must be a sufficiently broad agreement.

There is now in this country a sufficient recognition of the great extent of our problem. If one compares the way in which this is debated now and the way in which it was debated in 1967 — when the all-party committee were discussing it — it will be found that there is a clearer recognition in seeing it now as a social problem whereas then there was a tendency to see it more as a legal problem with social implications. It is clearly a social problem, one that interacts with many other of our social problems which we must also tackle. There is a clearer recognition by all of the extent to which there is marital strain, of the conditions under which marital strain, which, of course, is present to some degree in all marriages, ultimately reaches a stage at which a threshold is passed and it becomes a question of marital breakdown. In marital breakdown itself, before we come to the stage where divorce becomes for some an imperative, we have to pass through another threshold to irretrievable breakdown.

The first thing we must do is look on this problem as a social problem. It is a problem in which the individuals affected by it have reacted in many ways. In one sense we have had in this country down through the years altogether too much divorce — divorce by desertion, which has reached alarming proportions; we have had separations by barring orders. These are reactions which have occurred to this situation and which are completely and utterly unsatisfactory. We have an apparatus in regard to barring orders, in regard to separations, in regard to nullity. All of them could do with improvement, but this is beside the point. There is need of improvement to get rid of the ridiculous situation in regard to the lack of concordance on nullity between Church law and civil law. There is a need to improve the position in regard to questions of desertion, questions of violence in the home. There is, of course, a need to do something about the ridiculous situation in regard to the non-recognition of foreign divorces. But these are all minor compared with the need to tackle the central problem.

The central problem is that we have a major social problem on our hands and it must be faced frankly. How are we to face this problem? There are a number of ways that we could go about it. Frankly I believe, given the situation that we have in this country at present, the only realistic thing to do is to try to seek as broad agreement in regard to this matter as can possibly be obtained. My hope is that we could obtain this through an all-party committee which would sit but not I hope for years. It may not be possible at this stage for such a committee to report at the end of the year. But neither should there be any necessity for that committee to spend an unduly long time on their work. There is a need for such a committee to clarify some aspects of the problem for us but we certainly have no need of anything approaching a commission of inquiry. The solution which such a committee would bring forward would have a number of facets. Its solution might well involve some phased plan of action.

Above all, what we want to avoid either in our discussions or in the report of such a committee is any attempt to bring forward simplistic solutions. In that regard I should like to place on record now that the proposal to which the all-party committee agreed in 1967 is not a solution to the problem. Quite frankly, I want to say now that the important thing which the committee did in 1967 was to agree unanimously that the prohibition must go. That was the essential thing at that time. It was an unexpected outcome for many outside the committee. The actual proposal which was made is not one that would solve the problem and, as a member of that committee I make that statement now quite freely. What is needed is a solution that will go to the heart of this problem with its many ramifications. We have a need to explore the problem thoroughly. We have a need for the cross-party support that will be essential if recommendations are to be carried into effect because what we have to deal with first is the question of the constitutional prohibition.

It is for these reasons that I moved this amendment. I join with Senator Ross in hoping that, when such a committee does report, we will get some action as a result. I agree with him thoroughly that if action had been taken in regard to the recommendations of the 1967 committee on this, as on many other points on which they were unanimous, we could have avoided many subsequent problems.

I second the amendment standing in the names of Senators Dooge and Ferris. I do so for a number of reasons, principally because the amendment specifies in a very clear way a positive and constructive response to the problem which exists. The amendment and the amended motion, if adopted by this House, will provide us with the opportunity and framework within which the problem of marital breakdowns can be treated in a very satisfactory way.

Without being critical of the motion before the House, one might contrast the amendment with the motion on that basis. The motion, as it stands is very restrictive and negative in that if it were adopted it would simply have the effect of bringing us back to the situation which existed prior to 1937, the situation mentioned earlier by Senator Robb. On the other hand, if the amendment as proposed is accepted it will give us the opportunity of considering all aspects of this problem and ultimately of suggesting solutions. One should bear in mind carefully the wording: "...which will make recommendations ... on any legislative or constitutional action that may be required." That illustrates the constructiveness and the positiveness of this amendment.

It is important also that we realise we are discussing a matter which is of tremendous importance to this country. I do not agree with Senator Ross when he said there was an attempt to shy away from this issue, that there was a taboo on the issue of divorce or that it was an issue about which people were afraid or unwilling to talk.

It is important that we discuss the issue of marital breakdown in its widest sense and that we see divorce, as such, as simply one aspect of the resolution of this problem. The problem of marital breakdown gives rise to many distinct problems. Divorce is one way only in which possibly that can be resolved.

It is important also that in our consideration of the issues unanimity be achieved. As Senator Dooge said, one of the important aspects of the 1976 committee recommendations was that unanimous agreement was reached to change from the existing prohibition contained in the Constitution. It is very important that there should not be any division on this issue. That was one of the problems which existed in this House in 1925 when the divorce controversy broke out. If anybody refers to Donal O'Sullivan's work on the Irish Free State and its Senate in the chapter dealing with that problem one will see he made specific mention of the fact that the debate in this House at that time had the effect of poisoning the entire attitude to divorce in this country. Bearing in mind recent debates we have had in both Houses of the Oireachtas, and the recent debates we have had in the country on various issues, it is important that we be aware of the danger of introducing divisiveness into this issue. It is important that we recognise the fact also that in this country in the past 20 years we have seen very substantial changes, changes in our attitudes to all kinds of problems. One has only to refer back to debates which took place in both Houses of the Oireachtas dealing with such matters as the Succession Bill in the early sixties, dealing with the question of maintenance in the seventies to see how attitudes have changed so radically in such a very short period.

We must accept also that Vatican Council II, the rise of the feminist movement, the developing theology of the Catholic Church and various other things have had the effect of changing our attitudes. It is important that we do something which will give our legislators an opportunity of considering these changes and their effect on Irish society, and a framework within which to produce an ultimate solution.

One must accept that there are a considerable number of problems which can be fruitfully considered by an all-party committee. One must first examine the question of marital breakdown as such. One must examine the reasons for the increasing incidence of marriage breakdown in this country. One must consider changes which have affected marriage in this country, the rapid change from a rural to an urban society, the effect which rising unemployment is going to have on marriages here and the effect which the Northern difficulties are going to have on marriage in this country. These are the difficulties which are having an effect on marriage in the Irish context. Stresses are being placed on the institution of marriage of a kind which did not exist 15 years ago. These are things which must be considered.

We must also consider, as has been mentioned earlier, the entire question of nullity. We must consider the difficulties and the anomalous situations which arise whereby people may obtain a declaration of nullity from an ecclesiastical court in this country and find that they cannot then get married in this country unless they get a divorce outside the jurisdiction of the Irish courts which may be recognised there. There are many instances of people living in a criminal situation, a situation of bigamy, by virtue of a second marriage having taken place. They do so purely on the basis of having obtained a declaration of nullity from an ecclesiastical court. There is also the question of the children of such marriages, the question of succession rights and these are things we must consider.

We must also consider the whole role of our counselling services. There has been much development in this country in recent years in the whole area of counselling services for people with marital problems. We have to consider the issue of the privilege, if any such privilege exists, for counsellors involved in such work. That is something which is causing problems and is also something we should consider in setting up any all-party committee. We must consider property rights and the whole amalgam of jurisdictions available to the courts at present, from the District Court to the High Court. We have to consider the whole possible evolution of family courts. We have to consider the existing court structure and its operation in so far as that impinges on problems of marital breakdown. It is a disgraceful situation that people faced with the stresses and problems of marital breakdown frequently must go into dingy courthouses and frequently wait — certainly in the District Courts in rural areas — until ordinary criminal and civil cases have been disposed of. They must wait there until their marital cases are finally dealt with. That is an unacceptable situation and about which something should be done in an attempt to resolve it. This amendment gives both Houses the opportunity of dealing in a constructive way with all of the problems which exist. Above all it will afford us an opportunity at the end of the day of doing something which will constructively resolve these problems in a legislative or constitutional way.

The case for a review of the law of marriage is a very strong one. The case for divorce is usually introduced by referring to irreparable breakdown of marriages, to the misery and hardships created, and so on. There is no doubt whatever that there are irreparable breakdowns that do result in hardship, misery and so on. For that reason the case can be made for considering the present situation. But it must be recognised that that is one side of the story only.

To suggest that divorce will necessarily solve this problem is not true. Not only will it not solve the problem in many cases but, very often, it brings its own problems, hardships and tragedies. Anyone who is familar with the position in countries where divorce is available almost on demand will know that the end result is far from idyllic. Consequently, we should not approach this problem on the basis that all we need to do is wave a magic wand, permit divorce and the tragedies that are talked about will solve themselves.

One of the troubles about divorce — even if one accepts the necessity for it — is that, once introduced, it seems to be impossible to keep it within any kind of reasonable control. The arguments made for divorce always talk about special cases, about cases of irreparable breakdown and so on. They give the impression that these are unusual and that consequently divorce should be introduced to deal with these special deserving cases. The trouble is that that is not what happens in many countries where divorce is easily available. Once divorce becomes the norm to deal with any case where there are marital difficulties, then it seems to become the norm for almost any case where there are even the most minor marital difficulties. Consequently there can be no doubt that in other countries divorce is sought and availed of in cases where it is not really necessary at all, in cases where, in similar marriages in this country — where divorce is not available — in 99 cases out of 100 the marriage survives and, in the end, is shown to be a marriage which should survive and which turns out to be quite successful. One reason why we should approach this question of divorce with the greatest of hesitation and thought is that almost inevitably, if divorce is introduced, it will become widespread and get out of control with results which will prove to be far worse than what pertains at present.

The position in this country is complicated by the fact that we are a Christian country that all the Churches here disapprove of divorce with various degrees of emphasis. It should be realised that the Churches disapprove of divorce not because of some obscure doctrinal reasons but because the experience of these Churches over the centuries has convinced them of the importance of the sanctity of marriage and of its importance for the welfare of the family and society generally. Because they realise that, they realise that if marriage is undermined, the whole fabric of society will be adversely affected. For this reason I would like to emphasise the fact that a person of no religious persuasion might well argue against divorce, not because of any religious reason, but because he realises how important marriage is in society.

Senator Robb seemed to make the case that the Churches argue against divorce, that they were quite entitled to do that for moral reasons and because they had a rather high opinion of the individual but that politicians have to look at that in a different way. I would reject that argument. I do not think politicians must necessarily look at it in a different way. The importance of society, of the welfare of society, should be just as much the concern of a politician as it is of the Churches. If a politician believes that divorce will have a serious effect on society then he should argue against it in much the same way as perhaps the Church would from another point of view.

It must be emphasised that divorce is not just a matter for the individual. It is not just a question between two people; it does affect the whole of society. Consequently politicians must look at it from the point of view of the effect it will have on society and not merely the effect it will have on individuals. In approaching this question we must give very serious consideration to the way in which we would approach any change in the present situation and the way in which any change would affect society generally.

The position in this country is further complicated — as has been referred to by other speakers — by the fact that annulment is permitted by the Roman Catholic Church, that this permits new marriages and leaves former wives and/or children in an impossible situation socially and legally. This situation results, amongst other things, in bigamy, perhaps not widespread but certainly quite frequent nowadays. This is a problem we have in this country which does not obtain in other countries. Certainly it is something which needs to be examined and some attempt made to regularise this position.

The motion talks about the social problems. I agree that certainly the present situation presents very serious social problems which undoubtedly need to be examined. The Oireachtas Committee is that most appropriate method of examining the problem. It is not merely a matter of examining the problem but of deciding what can be done to solve it, to examine the ramifications of taking any particular action and to weigh up the good and bad results. Such a committee would help in arriving at proposals and recommendations which would take into consideration all aspects of this situation. I hope this committee will be set up and that in due course it will make proposals that will be acceptable as far as possible to all those concerned.

The first point I want to make perfectly clear is the position of the Labour Party in policy terms. In the mid-seventies the Labour Party, not capriciously but after a great deal of consideration decided overwhelmingly at their conference that they were in favour of the removal of the constitutional ban on divorce. That is the position of the Labour Party.

I remember very well the circumstances that prevailed when that discussion was taking place and I can see a shadow of it here again this evening. For example, there was an attempt to confuse a number of things. The people who were in favour of the removal of the constitutional prohibition on divorce were not saying that the removal of this constitutional provision was an answer to all of the problems of marital breakdown. What they were saying was that the removal of this constitutional prohibition was something which would enable a discussion to take place and enable the options to be put forward and it is quite dishonest to suggest that it was more or less than what it was.

The argument put forward — and I was chairman of the party at that time — was that on the grounds of pluralism, on social grounds and in response to the real conditions of a social kind which existed it simply was unhelpful to have a constitutional prohibition on divorce. The argument was not that this would automatically lead to a solution of problems to which other remedies were obviously appropriate.

As I listened to the people speaking in favour of the motion and the amendment I had several different inclinations. My political instincts are entirely to support the motion and the more straightforward speeches that have been made in that regard. On the other hand, I did not want to be accused of taking such actions as would impede any new form of consensus that might emerge. I think we should speak directly here this evening. It was very hard this week to hear about a new consensus that might emerge concerning marriage breakdown when we have had such competitions in opportunism in relation to the previous amendment we were discussing in this House. It is very difficult for me to sit here and listen to, for example, the law of the four stages through which a case for a constitutional amendment should go. You debate the existence of a problem — with the greatest of respect to my colleague Senator Dooge — then you examine all its aspects, see if you can get agreement and then you look forward to how you can implement this basis of consensus or agreement. Certainly, this law of the four stages did not apply when an unrepresentative group of people came in to meet the leaders of the two parties and produced an appallingly hyprocritical formulation which is now going to cost the people money, and which, interestingly, the people do not want. That is another fact we want to bear in mind.

Far be it from me to argue that polls should indicate the need for a referendum or not but in the case of the referendum which the basic motion suggests, all the evidence is that the people want that referendum. Furthermore, they are willing to support it and that support grows every year. The evidence is that they do not want the other referendum but they are going to get that one even if they do not want it and even if the support for it is decreasing every day. It seems to me to be rather extraordinary that you can impose conditions on the case for a referendum that people want and that you are willing to abandon all of these completely when you are anxious — let us be clear — to say yes to a group of people, mostly on the basis of fear and political opportunism. Perhaps the fear and political opportunism define their own laws and their own laws of different stages. Perhaps there is only one stage to moral capitulation.

There are other arguments that have been made that I think should be replied to because they are very important. As I listened to the speeches of those who were arguing striking positions against divorce I was not very convinced. After all, I am a sociologist and I find myself almost cringing when I hear the certainty with which people make statements about the impact of divorce on society. Many of us have studied this for decades and we know that it is factually untrue to link the fact of divorce with many social indicators that have never been proved to be derived entirely and exclusively from the availability of divorce in different forms. I have not time this evening to go through that argument. What we do know is that there are 70,000 adults who will be affected by our attitude in insisting on removing the constitutional prohibition on divorce.

I want to look at one usual piece of prejudiced moralising, for example, that divorce has an irrevocable effect on the family. I repeat, the case for that has not been made, that it has an irrevocable effect on children. I could produce dozens of reports to show that some of the most severe damage has been done to children where people have fought in front of each other and have insisted on sticking together. All the evidence on violence in the home shows that it is transmitted generationally from families from all classes who have seen it as a regular response to differences between couples. In fact, I would love to see evidence to show what comparisons might be made between the impact on children of parents who regularly argue and who cannot live together, and children of adults who make the mature decision that their union has irretrievably broken down and that they they must live apart. It would be very useful to see that evidence and I hope that it is provided for the committee.

To make a political point, I worry about people who are saying that they are waiting for a consensus. I hope the Minister of State will convince me in this regard when she comes to reply. What evidence is there that we want to have a consensus that would be based on an honest approach to this problem? I believe that has been eroded every day since 1967. What we saw recently was the very worst kind of moralising, rather than a moral position, people striking and affecting a high moral tone about what they believe to be the necessary ingredients of Irish society.

I think that Irish society has many defects. One of them is its flair for dishonesty and its willingness to put public poses in matters such as marital relationships before any genuine compassion or any adequate legislative response to complicated social problems. These are the questions I would ask before I make up my mind what to do. What will be the terms of reference of the new committee? When will it report? Will the Seanad be represented on it? What sections of the Seanad will be represented on it? Will Senator Robb of the Independent group be represented on it and so on? We need to know these details before we decide whether or not to support the amendment. Certainly, Senator Robb, having proposed this motion, is entitled to that knowledge and it is something that I hope will be forthcoming.

There has been reference to the dilemma that has been posed by the concept of nullity. I was a Member of the Seanad from 1973 to 1977 when the nullity ghost arrived. If you want to be really dishonest, you suggest that there is a parallel in the principles of jurisprudence from which the nullity procedures operate and the civil law operates. They are different; they cannot be regarded as parallel and it is simply evasive, wrong and dishonest to suggest that the civil law can mirror existing nullity matters. Let us think of the philosophical background to such a suggestion. It is often now proposed by a rather repetitive small lobby that you should simply make the civil law fit with the procedures of the Roman Catholic Church. If that is not sectarian, what is? But that is not my principal objection to it. The legal people who sit in this House know better than I do that the procedures in civil law cannot be accommodated to neatly handle the procedures in relation to nullity.

Senator Robb mentioned how you can secretly get a divorce in Ireland. You can be rich enough to go and live abroad for a while and then come home with your foreign divorce — and I will use the phrase he did not get to use — to the "divorce-free zone", and you can park your foreign divorce in the divorce free zone and be the envy of all the miserable people who are forced to live in celibacy because we want to keep insisting that this is a country that will have a Constitution that will always preclude the option of divorce. It is time that this dishonesty was called what it is — dishonesty and political cowardice.

I have referred already to the rubbish which has been put into the newspapers about the impact on children. I am the longest serving lecturer in the university system on the sociology of law, delinquency and crime and I want to place it on record that everything we know about delinquency and children in crime does not support automatically any connection with conditions of divorce. We could show that, for example, the children in trouble come really from poor homes that had been put under enormous pressure from unemployment and the absence of social provision, from families that stuck together in their misery and in their poverty often without assistance from the State, with little compassion, often being offered, for example, valium instead of adequate housing or a regular job.

I find it quite interesting to hear people striking poses like, for example, the notion that once you start introducing divorce it is almost uncontrollable. People are speaking about matters like the constitutional ban on divorce as if they were speaking about ivy in a garden. The only thing that is missing from the debate so far is the connection between divorce, euthanasia, abortion, homosexuality and so on — all one great part of a great slide which the Irish nation is about to rush down at any time.

It is now 1983. I have to remind myself quite regularly that we are living in this decade. I find it quite incredible to have people introducing bogus statements with a high moralising tone to them rather than any facts in relation to the implications of divorce. We have a major social problem on our hands and we must face up to it. We have wasted weeks on something that no representative group wanted and we have spent decades neglecting the problems of women, children and families. We are now going to frankly face up to our problems by rejecting the case for the removal of the constitutional ban on divorce. Those who have dealt with couples who can no longer live together will tell you that it is not divorce that breaks up marriages. After marriages have been broken up and people have gone through the pain and the disappointment of a love that did not work out, or perhaps injudicious unions and so on, are they to be condemned to live separated from each other? In Ireland we say "no": they can live in deceit and in hypocrisy. Perhaps they will have enough money to go to the Pope himself and he will declare it never happened. The marriage never existed and the children are figments of the parents' imagination. They can walk around the place but meanwhile back in Ireland the Constitution will say we are a country that will never allow divorce.

All the tones have been struck about, for example, the Church alone is not concerned about the moral state of Ireland. Of course it is not exclusively concerned. We should be rightly concerned about social morality but it is surely part of social morality that you behave with compassion and that you address your problems and not ignore them. It is very wrong to pretend that the people who support the motion are not interested in the other options that are available for marital breakdown. I have every sympathy with Senator Ross's position in which he makes the point that once we pass this motion and commit ourselves to removing the constitutional ban we can at the same time go on with the work of the committee. I do not think that it is exclusive. I am willing to allow the committee to come into existence but, equally, I find it necessary personally to declare my deep distrust of the people who have come to the committee late. Who knows why they held up the committee? Perhaps they were themselves coming to some far-reaching proposal of which I have not heard yet. It is important that a time limit be put on this committee and that the committee not be used as an excuse for not holding an urgent constitutional reform.

It was said that our position is complicated by the fact that we are a Christian nation. I found the phrase interesting because it is almost like a revealing Freudian slip. I think it is time that we regarded our Christianity, if we have it, as a little bit more than a complication. The people who have been dealing with couples to counsel them would tell you that none of them have lightly experienced what they have experienced. I have every sympathy with patient people who represent over 70,000 people — the Divorce Action Group — who have sent documentation to all of us. They have waited patiently for something which appeared to be coming in 1967, that was put in a Constitution in 1937 in a denominational atmosphere. The atmosphere of the thirties was one of denominationalism and now in the 1980s they want simply a prohibition removed so that all the other things that we mentioned can go on. What should happen is that if the committee does not come up with adequate proposals and if it seeks for example to put the red herring of annulment at the top of the agenda so as to block divorce being discussed then at that time the motion should re-enter the Seanad Order Paper and it should be supported. My personal view, and I will place it on the record, is that I think it was a disastrous inclusion in the Constitution in the first place and it is long overdue that it should be removed.

I welcome this debate. It is a good thing that we have started discussing marital breakdown in the Dáil and the Seanad. Before I address myself to this subject I would like to deal first of all with a couple of points raised by Senator Ross. He was uncomfortable with two words in the amendment, "proposal" and "recommendation". I would suggest that it is more than a proposal at the moment. There is agreement in principle and the proposal is not bogged down. Talks have already commenced and are going somewhere. The Senator was worried about the recommendations. Recommendations are all that any Oireachtas committee can make. I would remind the Senator that changes in the law are a matter for the Dáil and the Seanad. Further, consensus and agreement have a much greater chance of success than the proposals in the motion. Senator Higgins has made, as usual, a compassionate and caring contribution. I would ask him to be more positive and more hopeful about the proposed committee. It will not be treated in an off-hand manner and as far as I am concerned it will be given the urgency it deserves.

While I can understand and appreciate the sentiments behind the motion, I believe that the Government approach, as represented in the amendment supporting the setting up of the Oireachtas Committee on Marriage Breakdown, is by far the most sensible course to adopt at this stage, and I ask the House to approve it. Consensus is vitally important on issues such as this and, quite apart from any other consideration, the setting up of a Joint Committee of the Oireachtas will allow the Seanad to play its proper role in forming public policy.

It may perhaps not be generally appreciated that marriage has become a less popular institution in the past ten years. The number of marriages contracted in 1971 was 22,014 as compared with only 20,550 marriages in 1981, despite a corresponding increase in the order of 30 per cent in population between the ages of 15 and 44. The answer obviously lies partly in the financial burdens faced by couples getting married and setting up a home together, but it is also clear that many couples are viewing with severe scepticism the rigidity and the inflexibility of marriage in this country.

Marriage as an institution may be undergoing a major historical change. The traditional role of the father as the authoritative figure and breadwinner with the mother playing a subservient role in the home looking after the children is rapidly changing. The increasing equality of the sexes both inside and outside the home has created its own momentum. The emphasis is now on the sharing of responsibilities and on companionship in marriage. This had led to increasing pressures and increasing conflict — it has also generated a movement towards change which we must face up too. Quite simply, couples are much more reluctant to enter into life-long commitments or to put up indefinitely with the types of difficulties which they would have readily accepted years ago. They look to more liberal arrangements abroad and they cannot understand why our laws should differ so much.

Most marriages are, of course, stable, loving and good relationships. They are satisfying to the partners involved and they provide a secure and happy environment for the children. On the other side of the coin the reality is — and we must be prepared to face up to it — that many marriages break down, some of them irretrievably, and this frequently happens without any malicious intent or ill-will on the part of the people involved.

Marriage breakdown can be represented in terms of tens of thousands of men, women and children with all the resulting misery and desolation that that implies. It is a matter for the private domain, but it is also of very serious concern to the State because, at the end of the day, it is the State which picks up the cost — through social welfare payments, legal aid and coping with children at risk. Of greater real importance in my opinion is the ongoing human misery which is incalculable.

There are few matters of more immediate public concern than marriage breakdown and it is entirely proper that the situation should be considered by a Joint Committee of the Oireachtas. There is, correctly, emphasis in the Government approach on the need to protect marriage and this should lead us to consider how the resources of the State, along with the caring help of voluntary organisations, can be mobilised in support of marriage. We need to define the role the State might play in preparing people for marriage relationships. We need to look at our counselling provisions and consider the question of conciliation in the event of marriage breakdown and, above all, we need to consider how the laws of the State should deal in a humane way with marriage breakdown.

The Taoiseach has already indicated in the Dáil that the constitutional ban on divorce should be considered by an Oireachtas committee. It is perhaps worth noting here the work of an earlier committee. The 1967 committee was not an Oireachtas committee: it was an informal committee and, therefore, it had less status. Many people believe that the 1967 Committee on the Constitution recommended the abolition of the constitutional prohibition on divorce but this is not entirely so; what the committee did was to consider inserting an alternative to the existing provisions at Article 41.3.2. of the Constitution which would read "in the case of a person who was married in accordance with the rites of a religion, no law shall be enacted providing for the grant of a dissolution of that marriage on the grounds other than those acceptable to that religion". This was a very well-meaning and well-intentioned recommendation in 1967, but I believe that a solution on these lines would not find general favour in the circumstances of 1983.

There are other aspects of our marriage laws which need to be looked at. Pre-eminently the question of nullity of marriage must be considered in the context of the rules applied by the Catholic Church which have resulted in many people living in what is regarded by the civil law as a bigamous situation. Even legal separation, or to use, perhaps, its outdated term "divorce a mensa et thoro” can be granted in the State only on the basis of adultery, cruelty or unnatural practices. Without anticipating the work of the committee in too much detail, it is quite clear that the whole approach to marriage law in this country needs to be looked at critically by people who are in touch with society and who know and appreciate the day-to-day problems that arise. The issues involved are very complex and at times potentially divisive but they will not go away and, while the Oireachtas committee will not provide the answer to all the problems, it will, hopefully, focus in depth public and political attention on this human problem.

Above all, we need a measure of political agreement and consensus. I have made clear, both inside and outside the Oireachtas, my view that no party can claim a moral prerogative which would enable them to ignore this issue, and that no party can claim a monopoly of virtue. The people who elect us are entitled to expect that we will at least have the courage to look at the contemporary difficulties of society. For those reasons, I am very glad that the Fianna Fáil Party have now agreed in principle to take part in the proceedings of the committee. I know that the Seanad will be able to make a special contribution to the work of the committee, given the interest and expertise of Members.

Finally, I would like to tell Senators that the setting up of the Oireachtas committee will in no way diminish the Government's commitment to bringing forward reforms in those areas of family law which are already in hand. The Minister for Justice recently announced proposals for reform in the laws on matrimonial property which will recognise the joint interest of the spouse in the family home. This is a very welcome and worthwhile addition to the family home protection legislation which was initially introduced by Deputy Cooney as Minister for Justice. For my part. I am involved with the reform of the law on illegitimacy and I hope it will be possible to bring this matter to Government very shortly. These are very definite indications of the Government's determination to press forward with family law reform, and the setting up of the Oireachtas committee is the next logical step in that process. I ask the House to support it.

I am never sure whether there is a certain mystical aura about this House which enables us to avoid reality with a capacity for obliviousness which exceeds anything in any other area of society. Contrary to the long-fingering of this issue, and the public posturing of Members of this and the other House, it is recognised in private, as one very senior member of Fianna Fáil in the other House said to me, that martial breakdown is the biggest social problem in Irish society today. The party's attitude to the problem would not suggest that the view was shared by his colleagues, though I suspect it is. Who can be more aware of the scale of marital breakdown, of marital violence, of marital silence which is probably nearly as painful as marital violence, than the average Member of the Oireachtas who is dealing with hundreds if not thousands of constituents per month, many of whom bring up this problem over and over again? There is no point in pretending that the problem does not exist. I do not want to argue about the scale of the problem. People inside and outside this House are aware that it is an extensive and increasing problem.

We could argue about what causes this problem but we are not sociologists. There is only one professional sociologist here and he is more than capable of expounding the sociological view of these issues without my amateurish dabblings in that area. What is a fact is that marital breakdown is widespread and very real. Neither is it so new. I remember an eminent Dominican priest at least ten if not 15 years ago on a television programme dealing with what he described at the great silence, in other words, the absolute lack of verbal communication — I am not talking about the more profound concepts of communication but the actual exchange of words — between partners in marriage. He estimated that in 25 per cent of marriages there was total silence between the partners. This was his estimate. He is not given to sensational pronouncements. He is a very compassionate, caring man who I am sure accepts his own Church's teaching in the area of the indissolubility of marriage. That was some ten years ago. I suspect that if we did have, but we never will have, the resources to do so, we would find that silence, pain, misery of one kind or another have been parts of a large number of Irish marriages for a long time. There was such an extraordinary severe social stigma attached to the idea that a marriage was not working that we managed to convey to ourselves the illusion that all, or almost all, Irish marriages were blissfully happy with few or no problems and that it is only this new liberal and dangerously permissive younger generation who got this notion about marital breakdown. Unhappy marriages have probably been a fact of Irish life for generation upon generation. We just did not get around to recognising it, as with many other things. For instance, sexual problems have been ignored for generations.

On the other hand, divorce is not a solution to the causes of marital breakdown or to any of the problems that exist in marriage. I would go further. There is a tendency in present day society to advocate almost entire and total predominance of the happiness of an individual in terms of defining what is socially acceptable even if that produces consequences for other people which are more or less severe. In some cases the idea of the acceptability of divorce seems to be that nobody can be expected to live within an unhappy marriage since a person has only one life. I do not accept that view. If you take on the commitment of marriage — and children are a consequence of taking on that commitment — then it is simply not enough to say, "My marriage is a miserable experience." Nobody, not even Senator Higgins, has convinced me yet that children are necessarily worse off in an unsatisfactory marriage than they would be in the consequences of a marital division or a marital dissolution. There is considerable evidence in the United States that children, asked their view, say that given a choice they would prefer their often warring parents to stay together rather than to separate. Central to all of this is the responsibility to children of adults who bring those children into the world, and the welfare of the children cannot be ignored and must be considered. Just to say that a marriage is a failure is not of itself to justify divorce as a solution to that problem because the children cannot be ignored.

In terms of the moral self-righteousness about divorce that this country reeks of we ignore the consequences of our ideas on divorce and their impact on women in particular. We have an idealised notion in this country of the happy housewife at home minding the children very much exemplified by Ibsen's A Doll's House wife who was compared to a doll to be fondled by her husband on occasions and to perform in the way he expected her to perform. This is the kind of idealised notion of womanhood and woman in marriage that is fostered in our Constitution but which, as women begin to discover themselves as distinct from being influenced by anybody else, is becoming less and less satisfactory as a model of living for women. Therefore, our attitudes to divorce expounded mostly by a male Oireachtas and by male dominated Churches cannot really include understanding of the impact on women of this over-simplified model of marriage and its indissolubility.

In that process we have managed to ignore for generations the problem of violence in marriage. Violence in marriage has always existed. It took women to expose the problem of violence in marriage, although many others in society knew about the problem. Male politicians must have known about it. Male clergy of all denominations must have known, but it was eventually women who acknowledged and brought into the open the appalling and frightening extent of violence within marriage. The extraordinary presumption of subordination of woman within marriage is still contained even in our law and men assume and presume about it. As I have said previously here, this House often presumes about it in its total ignoring of family commitments and the way it orders its business and its Members and deals with its membership. We all assume that our wives and families at home are subordinate to the great interests of this House. We are not above criticism ourselves in our own assumption about the subordination of our female spouses. There are only a small number of married women in this House. We assume that they are subordinate and their welfare and their needs are subordinate to the great affairs of State. What we do for our great affairs every other male-dominated institution will do for their equally perceived great affairs.

We are treated regularly to lectures about discouragement of divorce, usually in quotes and capital letters, and particular emphasis is put on the worries and needs of children as a consequence of any introduction of divorce. Politicians preach on the one hand about the scourge of divorce in society, the sanctity of the family and the need to uphold the family and to preserve and look after the welfare of children in a society which has been as neglectful as ours has been, for instance, of family support. We still have no statutory counselling services for families. We have left that entirely to the Churches, perhaps because we were afraid to do it because the Churches might object, but also, I suspect, because we are happy not to do it when somebody else will do it for nothing and therefore we avoid the consequences of the State becoming involved in that area. If the State were to be involved in that area we would begin to become officially aware of the scale and extent of family problems and then we would have less excuse for ignoring them.

I am reminded of the ISPCC in Wexford who set up a family centre which was closed down by the State even though it was doing the sort of job that the State had signally failed to do for generations, in other words provide an environment in which families could learn to work out their own problems together.

We have scandalously neglected our services to children notwithstanding the amount of hand-wringing and bemoaning of the threat to children of introducing divorce. Where children are already at risk and threatened we have inadequate if not non-existent services in so many areas that I could not start to list them. I am reminded of a Minister of State in a previous Government who gave a lecture on the fact that the adoption laws could not be rewritten or amended because the voluntary organisations involved in adoption had not got around to drafting legislation, and how could he be expected to do it when the voluntary organisations did not do it? That is an interesting reversal of the roles of people outside this House and inside. We have not had any commitment to our children and we do not really do much to protect our children other than to define them as the property of their parents and subordinate them to the rights of their parents.

A woman has no rights or very limited legal rights to the income of her husband as long as he is living in the home, irrespective of the way he treats his wife and we put up various fatuous arguments as to what we might do if we have to deal with something like that. Relatively recently we allowed women the right to children's allowances. We still have not given them a legal right to a substantial part of the wage earner's salary. I do not know why but I suppose it has something to do with us all being men and being worried about the consequences for our virility of not having control over our income. We have insisted that deserted wives are not deserted if they leave the home because of violence. A wife is not a deserted wife unless the husband leaves, extraordinarily enough irrespective of the consequences. We have the law on domicile. It would appear self-evident that for a family to succeed they need a home and they must be able to afford a home and the major element in the cost of a home is the price of building land. We have ignored that problem for 25 years because of a constitutional provision which protects the interests of the minority irrespective of the damage that that can do to large numbers of families and we cut back on our housing allocation at the first sign of a financial crisis.

Looming behind all of this is the role of the major Church in our society and I do not think that it performs a role any different from what any other Church would perform if it were in a majority position. I do not think the Catholic Church is unique in this, but it seems ironic to insist on the need for civil law to enforce the law of God when one considers St. Paul's references to the glory of the freedom of the children of God and at the same time the Church apparently needs recourse to the laws of man because it is worried that it cannot through faith persuade people to observe the laws of God. On one hand that Church feels the need and expresses the desire to hear the people's view in a referendum on one issue but apparently is not equally eager to hear their view on another issue where perhaps the outcome is not so certain. It does not want to hear people's view on divorce.

In conclusion, there are a number of circumstances in which it is quite clear that we will not do anything about the problem as it stands. All of those have to do with children. I refer to the questions of deserted wives, absolute marital breakdown and real, serious family violence. Solutions might be available to us which would not involve divorce in a different kind of society with different values. I have no hope that our society as constructed and organised at present could inculcate the sort of values which would bring that about. Therefore it is necessary that the first step in order to legislate to meet those problems must be the deletion of an article in the Constitution which prohibits any form of legislative solution and therefore I support the motion.

I am pleased to see this motion on the Order Paper and also the Government amendment which I support. I hope that the people of this country who are quite well aware that marital breakdown is a major social problem and who look to this House and the other House of the Oireachtas for relevance will see in our debate today that not a Member in this House is unaware of the situation and is not prepared to seek for solutions. Following Senator Brendan Ryan for someone like me who is a feminist is a little daunting because he is making his mark in this House in a tendency to make some of the finest feminist speeches any of us have ever heard and I am sorry he is not supporting the amendment. I like much of what he said, particularly about the changing role of women in marriage and how this is having an effect on marriage.

I warmly welcome the setting up of the all-party Oireachtas committee on marriage. I am pleased that the hesitancy, doubt, fear and suspicion that seemed to bedevil them have evaporated and I hope that their terms of reference will soon be made known to us and that they will be set up shortly and get to work. I would like to think that they would have a time limit within which to bring their recommendations and findings to both Houses of the Oireachtas because this is a major social problem fraught with danger for those involved in it. The sooner we bring forward solutions the sooner we will be in the business of reform, and I like to think that in a time of great fiscal lack we in this Government are in the business of reform, because there is much that we would like to do but which cannot be done when the purse is not full. However, in a situation like this when reform is needed and energy, enthusiasm and commitment are required, we will not fail.

The task of this committee — in talking about them one merely wishes to encourage them and cannot pre-empt their findings — will be to assemble relevant data and to seek the opinions of experts in the field of marital breakdown. I see the people in the areas of law, psychology, sociology, theology and other disciplines which relate to marriage being consulted and their considered opinion brought to bear on the area of marital breakdown and on marriage in modern conditions. The members of this committee will have a very onerous but worthwhile task ahead of them. Their findings will be awaited with much interest not only by those people whom I have mentioned who are personally affected by marital disharmony but by all who have an interest in the welfare of Irish society and its future. I wish this committee well in their deliberations. So many of our people look to Parliament to give a lead in what is becoming an increasingly complex world and they are so often disappointed because they fail to see that lead emerging. Let us hope that in making their recommendations and analysing the causes of marital breakdown this committee will show compassion, insight and sensitivity but above all courage. They need to have courage to bring forward possible solutions.

Having listened to all the speakers who contributed to this debate to date I have a feeling that this committee will not skirt around the question of divorce. I am confident that, while they will not see it as a first solution, they will certainly bring it forward as a possibility which we must face. The motion shows a very narrow concentration on divorce and the necessity of allowing it. Though I understand the frustration and irritation felt by those who bring forward the motion, I think that in narrowly concentrating on divorce and the prohibition of it being removed from the Constitution there is a tendency to obscure the problems caused by marital failure. There could be a tendency to impede search for constructive and effective remedies. We must tackle the problem at source by developing new ways of dealing with difficult marriages, by insisting on proper preparation for marriage by ensuring that the first recourse when a crisis occurs is not a lawyer trained in advocacy and pitched battle techniques which so often militate against reconciliation. These are some the things we ought to be doing if we are really concerned to stop the rot setting into the entire institution of marriage and in addition we should have a facility for severing the bounds when there is no hope of the parties ever making a success of their marriage, a facility which is and should be a last rather than a first resort.

The committee could have an input in the area of preparation for marriage. As a public representative and a member of a local authority I have occasion to deal with large numbers of people, many of them young married couples, coming to me on the matter of housing. It is daunting and somewhat depressing if not horrifying to recognise that so many have been so inadequately prepared for marriage. Their values seem to be drawn from Dynasty and other television soapbox operas and they have an expectation of marriage and a rosy future the fulfilment of which is out of the question. It is sad when the disillusion and the rot set in and the despair is evident and they expect the State and the social services to prop up the dream and the reality, to provide a house, to provide all that they dreamt they would need and want and which they feel society owes them. They just have not been prepared for marriage or the reality of living and sharing and making a future. The committee could have some impact in bringing forward solutions and certainly in bringing into our education system some realistic preparation for marriage which is still a goal which most human beings aspire to. I believe in love and in loving and being loved. Hetrosexual love is the most rewarding and fulfilling feeling that any human being can experience.

Without loving and being loved the human spirit can shrivel and die. But love cannot carry all the demands of life which is what so many young people expect it to do. Intelligence, awareness, information and competence must be added into the mixture. We are at the beginning or well into the evolution of man and the human spirit. Probably never before have so many people been discouraged and dissatisfied with the state of the human condition as now. Everywhere large pockets of people are crying out for change. The main cry seems to be for greater feelings of individual self-esteem and loving-nurturing contexts that go with it. Old, traditional, entrenched human attitudes die hard. It is a question of whether the old attitudes will die and new ones be born or civilisation as we know it will die.

In the area of marriage we must have a breakthrough, certainly in the context of this country where our laws because of our Constitution deny a basic reality that so many people know is a reality but which we are refusing to recognise. I work in politics on the side of keeping civilisation going with new values about human beings. I want to see constructive change and I hope that when this committee make their recommendations on marriage we will see the awareness of the stresses and strains which modern conditions have imposed on marriage. An examination of marriage in modern conditions, an examination of contemporary marriage is a response to the tragedy of the breakdown in marriage which all thinking, aware adults recognise is getting out of hand. I support the setting up of the committee. I recognise marital breakdown as a reality and a great tragedy which we must address ourselves to. I feel that the proposers of the motion are adopting an unduly pessimistic attitude towards the committee. After all, no all-party Oireachtas committees have really got off the ground yet. An exception is not being made of this one committee. I am confident that its members will be realistic, compassionate and caring and that they will bring forward recommendations. I am prepared, when these recommendations come forward, to be extremely critical if they do not consider all the options which I feel must be considered and if they do not grasp nettles firmly which need to be grasped. For the moment I feel that the area is so complex, that so many people need to be invited to make submissions, that we must allow this committee to proceed with their work and bring forward their recommendations. I look forward to this.

I have spoken in the past about wanting to see a pluralist society, about wanting to see our Constitution reflect the aims and aspirations of all Irish people and I hope the committee will have something to say about that when they make their recommendations.

I am very impressed by Senator Bulbulia's contribution. Senator Higgins took exception to some Members who spoke with certainty and I want to confess that I do not speak with any certainty. I hope I speak sincerely, and I share the concern and compassion of Senator Higgins. I welcome the all-party committee on marital breakdown. They have a major task before them. I wish them well and I hope that they will get through the work in as short a time as possible. I believe that in their deliberations divorce must be considered. It is hard to believe that a solution will be found which does not include divorce in some instances. I realise that divorce would, in its own way, introduce other problems.

The religious aspect has been referred to on a few occasions. It is an important aspect. In a previous contribution here I stated that I found difficulty in isolating the definitive Protestant view, and I did not say that with any criticism. With regard to the Roman Catholic Church I also have a problem. While in the main I do not have difficulty in understanding what the official view of the Church is, I am not too sure that the behaviour of the members of that Church in their lives reflect in totality at least the views of that Church. I believe that the teaching of the Church "Whom God hath joined together let no man put assunder," and the vows at marriage "until death do us part" should be the norm that Senator Eoin Ryan spoke about and will continue to be the norm. Everybody agrees that marital breakdown is a major social problem and a growing problem.

I want to refer to a document which all Members of the Oireachtas received from the Divorce Action Group in relation to the extent of marital breakdown. It states that it occurs in this country under the followings headings: desertion, divorce a mensa et thoro— which is judicial separation — separation agreements, civil annulment, Church annulment, barring orders and custody of children actions. It states on page 5:

There are no accurate statistics whatever readily available on a comprehensive total for these various groupings.

It goes on to state:

One indicator of the growth in marital breakdown is the number of applications for deserted wives' allowance and benefit. This has risen from a total of around 10,000 in 1980 to a total of almost 15,000 to date. The average number of applications for deserted wives' allowance in the first ten years of operation up to 1980 was about 1,000 per year and the current average appear to be 2,000 per year. These are applications only and the number in receipt of deserted wives' allowance and benefit is far less presumably as women under 40 with no children and without benefit and those in receipt of £38 per week or more do not benefit either.

Further down it continues:

(k) By assuming that marital breakdown was not a significant feature of Irish life before 1960 and by calculating on the basis of a gradually increasing rate of marital breakdown Divorce Action Group concludes that there are 70,000 adults involved in marital breakdown at present. All indications are that the rate of breakdown is increasing. A crude test question is to ask an Irish person if he knows of a marital breakdown in his personal knowledge. The answer almost invariably is "yes".

According to a table in the Sunday Independent of 22 May 1983 the Dublin metropolitan and county District Court applications for maintenance orders in 1977 were 653; in 1978, 1,109 and in 1979, 1,363. The number of barring orders sought in 1976 was 180; in 1977, 257; in 1978, 403 and in 1979, 633. The number of High Court actions for maintenance in 1977 was 148; in 1978, 196, and in 1979, 263. The number of child custody cases in 1977 was 182; in 1978, 211; in 1979, 295. The number of applications for Catholic Church annulments was in 1979, 623; in 1980, 694 and in 1981, 687. I want to make the point in passing that it is the general belief, rightly or wrongly, that finance is a factor in getting annulments through with some speed.

There are many causes of marital breakdowns and it is not easy to deal with them. I will list some of them, affluence, education, liberation of women, working wives, the traditional role changed, technology and progress, authority and religion and the shift in sexual morality. I am not sure how they should be dealt with. On affluence can we turn back the clock in any way? What can we do about education, liberation of women or working wives? Everybody I am sure is agreed that wives who want to work, and have something to contribute professionally, should be encouraged and be given every help to do so.

I am concerned about the traditional role of the family. I do not advocate divorce. One of the consequences of the problem, as mentioned in the Minister's speech is that experimentation takes place where couples are living together without being married. I do not condone or condemn that but it is something to be concerned about. Like Senator Higgins, I do not believe that provision for divorce will be an evil influence or that it will become the norm. With regard to legislating for divorce, that is covered fully and sympathetically in the Divorce Action Group literature, which Members received. One of the topics they suggest should be dealt with in a Bill is counselling and conciliation and that is dealt with in detail in the document which shows great sympathy and understanding. Other headings suggested for a Bill are, separation, proceedings relating to the status of marriage and the dissolution of marriage. The document states that the grounds for dissolution of marriage should be that marriage has broken down irreconcilably on the following basis:

(x) years separation in accordance with the Bill; A recognised separation order or agreement in force for a number of years.

The welfare of children is taken into consideration as is maintenance and property, and the influence which divorce would have on children. I must agree with Senator Higgins in that respect because in a situation where cruelty is a problem in a marriage and children are involved divorce would solve that. That is covered very well in the literature we got. We were also briefed on the Law Reform Commission Report on Illegitimacy and that must be a major consideration. Divorce is dealt with fully and sympathetically in the document circulated to all Members of the Oireachtas. I understand that opinion polls in recent years have shown sympathy towards the question of divorce. All the implications will have to be considered and we have the experience of other countries to help us.

Divorce is a last resort. There are very few human beings in a marriage situation who would not admit that every marriage has some strain. Divorce will only be considered as part of this enormous task which is facing the all-party committee on marital breakdown. I was impressed by Senator Robb who spoke of the sanctity of marriage and said that the problems in this area were not alone problems for politicians but involved philosophers, theologians and sociologists. I was impressed by Senator Dooge who said it was important to get an answer which would be right and one which can be implemented. I look forward to a solution in the report of the all-party committee.

I warmly welcome the opportunity to discuss the issue of divorce in the House. Before I make my contribution, I am wondering about the time-scale because I know that Senator McGuinness and others are anxious to contribute.

I also am wondering about that.

I do not want by taking up my full allotment to prevent another Member from speaking.

I accept that the Senator has a number of points to make.

I will confine myself to a maximum of ten minutes and that will leave some time for others. This is an issue which I welcome the opportunity to debate in the Seanad because I have participated, as other Senators have, in so many meetings and public debates on this issue outside the Oireachtas. It is a matter which has been discussed widely and publicly over the last few years. Frequently, particularly towards the end of public meetings when all the arguments had been gone into and many of the issues discussed this afternoon had been raised by speakers from the platform and, sometimes more graphically and more touchingly, by members of the audience, again and again — and I am sure other public representatives — have been asked why it is that we cannot progress on this issue when the arguments are so irrefutable? Perhaps we have to have a joint committee to bring all those arguments together but once they are brought together I can assure the House that the case is unanswerable for reform in a broad based way but also for the removal of the prohibition on divorce. That cannot be lost sight of. Once we seriously apply ourselves and conscientiously examine the matter then the legal case is unanswerable. The present law in this area is a disgrace. As legislators we can only be ashamed of our lack of attention to this issue. The law in the broad sense, our family law, because of the absence of proper procedures and mechanisms, proper supports and preventive measures and also the absence of a legal remedy for a breakdown of marriage which enables parties to enter into a second stable relationship, is indefensible, discriminatory and oppressive. It daily oppresses a very large number of couples and their children here. We can only reflect with sadness and a sense of shame — this is not the first time I have used that word in the House recently — on the fact that we have not been able to make substantial progress.

In a way, having spoken on the issue so often in other contexts, it is difficult to know on what part to focus in trying to ensure that the debate moves along a little. I am certainly helped in that regard by agreeing so substantially with a number of the contributions and points made, particularly the contribution of my colleague Senator Higgins, and those of Senators Ryan, Bulbulia and, indeed, with a number of the points made by Senator Fitzsimons who referred to the memorandum prepared by the Divorce Action Group.

I would like to pay tribute to the Divorce Action Group who, in a remarkable way over the past number of years, have gathered together whatever statistical information that is there and it is very inadequate for the social problems that are involved. They have gone about in the most democratic and proper way the business of trying to persuade and lobby for what they believe to be a desirable and necessary objective. Indeed, they are a shining model of what a group can do who apply themselves with an emphasis on the democratic process, on discussion and information and on persuasion rather than blackmail, bullying or hidden tactics of seeking to exercise some undue pressure or leverage on public representatives. Therefore, it was sad at times at public meetings to see the extent to which those active in the Divorce Action Group, and ordinary prople who attended those meetings, became depressed at the lack of progress.

The main thing we should focus on for the remainder of this debate is how do we ensure that progress will now be made in a structured and systematic way on this issue. In that regard I obviously welcome the presence in the House for this debate of the Minister of State with responsibility for women's affairs. I welcome her contribution in referring to the immediate establishment of an Oireachtas Committee on marital breakdown and the fact that the Taoiseach has indicated that the issue of divorce will be referred to that committee. I have to say that I was disappointed with other aspects of her contribution. I am disappointed that as the Minister of State with responsibility for women's affairs she is not taking more of a lead in relation to the approach which the committee and which she, as Minister with responsibility for women's affairs, would like to see adopted. Perhaps she feels it is possible to achieve a consensus by not revealing any views or any commitments in the matter herself. I do not agree with that. The way to achieve a genuine movement leading to a political consensus for reform in the matter is to take a lead, to give a focus and direction both to the committee and to how they will approach and consider their work. For example, it is not clear what the time scale of the joint committee will be. It is not clear what the time scale will be for setting the committee up. We are about to go into the summer recess now. Will they sit during the summer months as the Forum on proposals for a new Ireland intends doing? Is it possible that they will sit during July, September and October when the Dáil is not sitting? Will there be a sub-committee, for example, on the divorce issue so that this issue may be advanced in the context of what is in fact a very broad area of subject matter? For anybody who is involved in trying to deal with the legal and social problems arising out of marriage breakdown to remit all of that en bloc to a parliamentary committee of all things could be a way of shelving the problem for anything up to five years. It is possible for a committee, depending on their own sense of pace, how often they meet and go about their business, to sit and stew on the matter for the lifetime of this Government and one may have different views on how long that might be.

There is a necessity for more evidence of focus and urgency in the establishment and the priorities of this committee. For example, this committee should bring in a number of interim reports. They should not so overload themselves with the very general area of the problems that in fact they can take nothing on board and cannot for a long period come back with specific proposals to both Houses and, in particular, with the reinforcement of the Government's intention to bring in reform in this area.

I was glad that the Minister referred to the fact that there would be Seanad participation. There has been a commitment in the joint programme to have a Joint Committee of both Houses. There has been some rumour or indication that the committee might have a small membership. That would be quite inadequate. It is obvious from the contributions already made in this House that there is both an expertise on the issue of marital breakdown and a very genuine commitment in a broad way among the Members of the House.

When an Oireachtas Committee is being established it would be more appropriate to try to broaden the membership to encompass Members who have an interest in and a willingness to participate and work on that committee and not to confine it so narrowly that it only consists of a small number of representatives, perhaps confined to the political parties and not including Independent Members, or only including a small proportion of those who would be willing to serve. I say that not only as a general proposition to enable Members of both Houses who wish to have an opportunity of participating, working on this committee and devoting their time and efforts to ensuring that it will do the work which it will be allotted and come back at an early date with proposals for reform, but also because my experience of serving on the EEC Joint Committee on secondary legislation has been that even in a committee of 26 members, there is a small catchment core group who do most of the work. It needs a relatively broad membership to ensure that there will be a regular core of Deputies and Senators prepared to attend committee meetings which may mean that they will have to leave some other public forum, whether it is a House of the Oireachtas or some other arena, to do work quietly and methodically in committee or in private.

It would be interesting if the Minister of State had indicated the extent to which this Joint Committee will have hearings in public. Is it intended that the committee will make themselves available to the voluntary bodies who know so much at first hand about the nature of the problem and are able to provide very clear evidence of how serious both as a social problem and as a legal morass — that is the politest word I can use — our whole area of matrimonial law is at the moment?

It has been said, and it is true, that our family law, including our matrimonial law, has now become the most complex in the world because we do not have any straightforward legal remedy to terminate a marriage relationship which has totally broken down. We have very complex partial remedies and links between relationships and remedies which try to meet the complexity of human relations. It is only lawyers, social welfare officers, judges and people involved in the front-line who realise how complex ordinary people's relationships can be and how oppressive it is when on top of a considerable degree of human pain and suffering one adds the oppression of stupid, inflexible, rigid, uncaring, unfeeling and out-of-date laws. This is something which has been a blight on our legal system for a number of years, the absence of any concerted attempt to reform our basic marriage law. The basic law in relation to a legal separation dates from 1870, it is 113 years old. It is a totally inadequate response to the problem of marriage breakdown and so are all the other remedies that have been referred to.

In that regard the case does not only need to be made out but requires that the pattern the Minister is referring to of the increasing evidence of the unpopularity of marriage, must be taken into account and regarded with the gravest seriousness and urgency. It is remarkable to see the figures in relation to marriage in Ireland, given the demographic structure, the youth and the increasing size of the population. We must appreciate that it is very largely the oppression of the laws and their inadequacy which are a deterrent to people in making the lasting commitment of a marriage.

I warn the Minister of State that if the present proposals for co-ownership of the matrimonial home are put forward by the Government in the absence of urgent consideration of these measures of reform for marital breakdown, specifically the removal of the ban on divorce, they will be a further deterrent to people getting married and making the commitment to the marriage relationship. As a measure, it is obviously a progressive measure of social reform. In the Irish context now it is a further burden on an institution that is overburdened by oppressive and inflexible laws which are creating in themselves a very serious social problem. We have not got the luxury either of time or of a public that is going to be patient with us as politicians. I welcome the opportunity that we have had to discuss the issue of divorce.

I affirm — as I have done for more than a decade — my own commitment to seeing the ban on divorce removed and our law reflecting the reality and helping people who are caught in a very difficult situation of marital breakdown for whom it is the appropriate remedy in their circumstances, and for the many stable couples in second relationships, or possibly in a third relationship, who are unable to regularise their relationships. We do have very real discriminations in Ireland between what we regard as the model, the married family, and the very many people in stable loving relationships not based on marriage. Just as the Minister is examining the position of illegitimate children, I urge her to examine the position of the partners in a stable relationship not based on marriage: the fact that they have not got protection under the Family Home Protection Act, no protection in relation to maintenance, no protection in relation to violence and the inadequacies of our laws in this area. They too, are a matter for very serious concern. In the interest of enabling others to participate in this debate I will conclude.

Will the House tell me if this matter has been discussed with Senator Ryan who is due to raise a matter on the Adjournment at 8 o'clock.

I have discussed this matter with Senator Ryan and he is willing to come in later if we continue with this a little over the time.

The Senator will help me by being brief.

I will do my best. I would like to start by thanking Senator Robinson for cutting her own points short in order to allow me to contribute.

I say that the marriage between the defendant and myself has irretrievably broken down and I therefore pray this honourable court for orders in the terms of the special summons herein.

That is the final paragraph of a matrimonial affidavit of the type which goes through our courts every day all the year round. It states that a marriage has irretrievably broken down in a way that our courts already accept to be true. The courts will act accordingly, except in so far as they cannot dissolve the marriage. They will do everything else they possibly can to deal with this situation but they cannot dissolve the marriage. It is very important for the public and Members of this House to realise that our courts accept that marriages irretrievably break down and that irretrievable breakdown is pleaded again and again before our judges now. It is not something that is threatened if we bring in divorce; it is something that is happening already. We are already surrounded by dead marriages to which we will not give a decent burial. We simply let them lie around as rotting corpses.

As regards this motion, like other Senators I welcome the opportunity to discuss the issue of divorce but I would also press that the motion as originally worded puts the actual hard question, are we willing to move ahead to have a referendum on this issue? Why are we going to be so coy about this issue and leap instantly into the protection of a select committee where with the other issue that was before us a few weeks ago the party leaders rushed into a commitment to say that they would amend the Constitution without the slightest murmur of a select committee? Those of us who tried to amend the proposal in order to provide for a select committee to look for all the difficulties inherent in the other amendment of the Constitution were told that our amendments were out of order and could not be discussed. I find a very strange contrast between the two approaches to these two different things although I would have said that the necessity for this amendment to the Constitution was much more logically, reasonably and publicly proved than the necessity for the previous amendment. However, given that it is necessary to set up a committee to look into this I hope the committee will do their work properly, but I would prefer if it was included in the terms of reference of the committee, as set out in the amendment, that they had an actual commitment to deal with this specific problem, not just vaguely any legislative or constitutional action that may be required. The Minister said the committee would hopefully focus in depth public and political attention on this human problem but much as I admire the Minister and her contributions to Irish life, may I say that that is not enough, nor half enough.

Already the Divorce Action Group, and many other people, including my colleagues in the House and myself, have focused public and political attention on this human problem. Indeed, so has the Minister and organisations with which the Minister has been closely associated in the past. There is no problem about focussing attention on it. There is plenty of attention. It is doing something about it that we are so shy of. I go along with Senator Ross in suggesting that we should have a commitment that we do something about this specific area as well as looking into the whole matrimonial law area. We should do it by May 1984 and not allow the thing to drag on into the convenient obscurity of a committee that goes on and on forever. Those of us who are involved in the law regarding children know what happened to the task force. We do not want another matrimonial task force, thank you. We want something done and done in the short term. A lot of the research has already been done, and many of the problems have already been identified.

As far as the committee's work is concerned there are at least two other areas they should deal with besides the constitutional prohibition on divorce. First of all they should deal with the incredible jungle of legal formalities about the setting up of marriage, a technical problem which I do not have time to go into now, but in which a different set of laws applies to virtually every religious group in the country and which is probably constitutionally discriminatory. Secondly, there is the area of matrimonial property. I would most enthusiastically second Senator Robinson who said that the proposal to give the partners 50-50 ownership of the matrimonial home, well meaning though that is, cannot be considered out of the context of the general reform of matrimonial law. Otherwise, it may create more problems than it hopes to solve.

Clearly, the idea of a constitutional ban on divorce is that it should protect marriage and the family. The statistics on marital breakdown here and the amount of our court time that is taken up with such cases indicate that it is one of the most frequent kinds of litigation, probably second only to car accidents. We do not hear about that because the cases are held in camera but they are nevertheless there. The courts are crippled with the number of matrimonial cases. The vast majority of the work of the legal aid board law centres is in the matrimonial field. We have this problem. It is clear that the ban on divorce is not preventing marital breakdown. Therefore, it is time to see what kind of solutions we need. There is no use having a legal morass, as Senator Ross has said, where a couple can emerge with all the ancillary orders that normally go with divorce, custody, access, maintenance, division of the matrimonial property and yet be unable to remarry. It is so ironic that this kind of irretrievable breakdown is accepted and that these orders are made, that the whole atmosphere is that the marriage is dead and yet a decent burial cannot be given to it.

There are the legal difficulties created by these continuing dead marriages with regard to succession and the rights of second stable relationships. There are the psychological and emotional difficulties and the unending bitterness of the continuing dead relationship. There is no question that nullity in the civil law could possibly be a realistic alternative because nullity can only apply in relatively few cases.

One other area I would like to mention is the position of children which has been dealt with extensively by other people. I believe in some cases marital breakdown undoubtedly damages children whereas in other cases perhaps things are so bad that the children are better off with the parents separated. The point is not whether it damages or whether it does not damage the children; it is the breakdown of the parents' marriage that does this to the children. It is not whether you call it nullity, divorce, divorce a mensa et thoro or whether you call it an action under the Guardianship of Infants Act. It is the actual break up of the marriage. This is what is happening. By giving divorce we are only recognising what has already happened. We are not damaging the children by calling it divorce. We are just recognising that this thing has already happened. This is important.

The international aspect is important. It is becoming increasingly complex in the field of legal relationships and the status of people in this country with the increased movement from one country to another that we have, where people are in limping marriages, where they are married in one country and not married in another country, where children are legitimate in one country and not legitimate in another country. Any lawyer working in this area will tell you that an increasingly large volume of what they are doing is opinion work on the status of children, on the status of people who are supposedly married or supposedly not married. This is becoming a very severe problem.

I will end by contrasting the slowness with which we, as Houses of Parliament, have dealt with this problem. We are beginning to deal with it now and we, hopefully, will deal with it quickly. The slowness with which it has been dealt with, despite the fact that it is such a real and active social problem contrasts with the incredible speed with which the abortion amendment was dashed in front of us and we were pressurised into saying that this must be enacted immediately; we must have a referendum immediately and so on. Surely we can see that this problem is one that affects human beings, if anything much more than the previous one, and demands not just that we set up a committee but that we set up a committee which is committed to deal with this specific issue of divorce and is committed to end its deliberations at a foreseeable date.

I will not keep the House very long as I realise that we are overrunning our time. This was meant to be a tough topic and has proved to be so. I find a great deal of disappointment with this debate. It has been basically a bogus debate from the Government side. It has been full of camouflage and it has been unrealistic. None of the questions which I asked in my initial speech has been answered. I asked would we be putting this clause in the Constitution if it were not there already? The answer may be self-evident but nobody appears to acknowledge it because it is a matter of embarrassment to them. I asked why the 1967 Constitutional Committee's recommendations had been ignored? Nobody has been able to explain that to me.

Nobody has been able to assure me if such a committee as this one is set up that those recommendations will not be ignored. The Minister said that these recommendations have a better chance of success than the motion before this House. I am not satisfied that the all-party committee will make recommendations which will have a better chance of success. We need something concrete.

The Minister's speech was full of platitudes, goodwill, good wishes and good intentions. She said that significant talks have already begun with the Opposition party. That is not good enough. We do not know where these talks are going; we do not know how long they will last. Those talks, apparently — there is conflict about this — have been going on for six months. We do not know if they will end before the end of this session. If they do not they will be through to October and presumably then the all-party committee will not be set up until 1984.

We have the demand from the Government side for consensus. I have never understood what the word "consensus" means. As far as I can see it means unanimity. There is no possibility of unanimity on this issue. The Government should be leading on the issue. As Senator Dooge said, quite inadequately as far as I am concerned, we need an all-party agreement on a subject such as this. This is saying: "We are handing the veto to Fianna Fáil on this issue and abdicating our responsibility as a Government". That is not good enough. This is a nettle which I would have expected the Government to grasp. They are refusing to do so in a cowardly way. I have not heard one speaker say what the attitude of the Fine Gael Party or individuals of the Fine Gael Party is to divorce. The Minister mentioned divorce once and that was the crux of the motion. The party in Government should have the courage to tackle this problem. They have singularly failed to do that here today.

The speech by Senator Eoin Ryan was totally unrealistic. You would think that we were producing a motion to introduce divorce on demand. It must be remembered that all this motion is asking for is the deletion of an Article in the Constitution which prohibits it. That is all, no more and no less. Senator Ryan spoke about situations in other countries where there is divorce on demand. Nobody is asking for that and it is dishonest to suggest that they are. They are simply and solely asking for the deletion of a particular Article which prohibits the dissolution of marriage.

We have had no answers to the questions about the all-party committee. We have had no answer on the time limit. We have had no answer on the terms of reference. We have had no answer on what the composition of this committee will be. I find this whole debate unsatisfactory. We have had no answers to the questions which we put originally and I cannot escape from the fact that I believe that this all-party committee is a device which the Government find convenient. It is handing over responsibility which they do not want to take. I am not convinced at all that this will not go the same way as the 1967 Committee on the Constitution. I oppose the amendment.

Question put: "That the words proposed to be deleted stand."
The Seanad divided: Tá, 6; Níl, 38.

  • Higgins, Michael D.
  • McGuinness, Catherine I.B.
  • Robb, John D.A.
  • Robinson, Mary T.W.
  • Ross, Shane P.N.
  • Ryan, Brendan.

Níl

  • Belton, Luke.
  • Browne, John.
  • Conway, Timmy.
  • Cregan, Denis (Dino).
  • Daly, Jack.
  • de Brún, Séamus.
  • Deenihan, Jimmy.
  • Dooge, James C.I.
  • Durcan, Patrick.
  • Ellis, John.
  • Ferris, Michael.
  • FitzGerald, Alexis J.G.
  • Fitzsimons, Jack.
  • Harte, John.
  • Higgins, Jim.
  • Honan, Tras.
  • Hourigan, Richard V.
  • Howlin, Brendan.
  • Hussey, Thomas.
  • Bulbulia, Katharine.
  • Burke, Ulick.
  • Kennedy, Patrick.
  • Kiely, Rory.
  • Killilea, Mark.
  • Lanigan, Mick.
  • Loughrey, Joachim.
  • Lynch, Michael.
  • McAuliffe-Ennis, Helena.
  • McDonald, Charlie.
  • Magner, Pat.
  • Mullooly, Brian.
  • O'Brien, Andy.
  • O'Leary, Seán.
  • O'Toole, Martin J.
  • Quealy, Michael A.
  • Ryan, Eoin.
  • Ryan, William.
  • Smith, Michael.
Tellers: Tá, Senators Ross and Robb; Níl, Senators Belton and Harte.
Question declared lost.
Amendment put and agreed to.
Motion, as amended, agreed to.

Before we proceed with the Adjournment when is it proposed to sit again?

It is proposed to adjourn until 2.30 p.m. next Wednesday.

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