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.