Seanad Éireann debate -
Thursday, 28 Jun 1984

Vol. 104 No. 8

Joint Committee on Marriage Breakdown: Motion.

Professor Dooge

I move:

That the period for reporting back to the Joint Committee on Marriage Breakdown be extended to the 1st December, 1984.

Senators will recall that we have two types of committees under the new system. There are committees which are considered to have sufficient work that they certainly will last until the end of the period of this Oireachtas and perhaps beyond it. There are also committees appointed to deal ad hoc with particular problems. Whereas the Legislation Committee that we have been dealing with under Motion Nos. 1 and 2, belongs to the former, the Joint Committee on Marriage Breakdown belongs to the latter type of committee.

It was appointed in July 1983. It held its first meeting in September 1983 but it did not have available to it permanent staff until November 1983. Anyone with experience of these committees will realise that while a good deal of preliminary work can be done without permanent staff, a committee only really gets a life of its own and only really settles down to make real progress in regard to its work when in fact it gets permanent staff.

I would like to say that I think it was unfortunate in regard to all the committees that this particular transitional problem of having staff established did in fact take so long. In the case of this committee there were six months between the time of its appointment and the time in which staff was available. That was a transitional problem. We hope that it will not happen again. Many of the committees now have a full time clerk as well as occasional expert staff. In the case of committees that carry on we would hope that the staff will carry on from one Oireachtas to another. In the case of the ad hoc committees we hope that these people would be available once one ad hoc committee has finished in order to work or be replaced by somebody else in the ad hoc committee that would then be set up.

There are other problems of this type. Senator Robinson mentioned them in particular when we were establishing these committees a year ago. I would like to refer to one of them now. That is the question of working out how we avoid delay in the establishment of committees when a new Oireachtas is elected. This is a point to which we could all turn our minds and ensure that we do not have the difficulties which she mentioned about elections rapidly succeeding themselves. We had the position where a committee, as important as the Committee on Legislation under the EEC was not meeting. In regard to this case, the request has now been made by the Joint Committee on Marriage Breakdown, which were asked to report within 12 months — which would mean that they should report next month — for an extension from 12 months to 18 months.

They have been working quite hard since November and we have a number of members of that committee present in the Chamber and I am sure they will assure us of that fact. My understanding is that the committee have already considered the problem of the age of marriage, the question of formalities for marriage and the law of nullity. At the moment, they are examining the question of judicial separation and they feel that, in order to complete their work, they should consider such questions as the structure of family law courts, the question of maintenance, the questions of trustee and guardianship, the question of family property and the question of foreign judgments. I think in view of the difficulties of start up in regard to this particular committee as in others that their request for an extension is reasonable. I think that any request for an extension beyond the extension now being made would not be reasonable, and I would hope that the committee would not be encouraged to think that if the House agrees to this particular extension they could come back and look for another one. My attitude might be quite different on that second occasion. I recommend that the period for reporting back be extended to 1 December 1984.

Mrs. Robinson

I deeply regret the fact that it has been necessary to come to the House and look for an extension of the period of work of the Joint Committee on Marriage Breakdown, but as a member of that committee, I can see the necessity for this extension and I agree with Senator Dooge that we must ensure that we complete the work by 1 December next.

There were two principal reasons why the committee were not able to discharge their very important and very urgent tasks within the calender year, which would have ended next month. The first was the reason referred to by Senator Dooge, that although the committee were established in July and had their first meeting in September, it was not until November that we had some staffing, and not until considerably later that we had the legal expertise seconded to the committee which was necessary for them to begin to take on the very complex and difficult task of formulating proposals for reform of marriage and family law. I think that was a disgrace — there is no other word for it. You a Leas-Chathaoirligh, are also a member of that committee, and you expressed a similar view when the committee were sitting week after week and were not able to make any progress. This brought into question how serious we were about the role of these committees and what tasks they could perform. Happily, after far too long a start up period, as Senator Dooge has called it, the committee got the minimum secretarial and legal expertise to enable them to begin to take on and start the tasks set out in their terms of reference.

The second reason why the committee have taken longer than was envisaged was because of the flood of written submissions. As a member of that committee, I know that of all the committees that I have served on or am serving on, this is the one which takes up most space on shelves behind my desk — I have now run into another set of shelves of box files of written submissions from groups and bodies and even from individuals, giving very detailed accounts of the difficulties they have had, either in their marriage or in their family situation, and in particular the difficulties they have had in their interaction with the legal system, with the courts and with the law generally. This flood of written submissions has certainly justified the need for a careful and structured examination of this area of law. If any of us had any doubt, which I do not think we should have had the extent to which individuals and groups within the community have responded and taken the opportunity to make submissions to the committee has justified and indeed reinforced the significance of the work of the committee. Apart from these written submissions a very large number of groups and bodies wished to make oral presentations to the committee. That required the committee sitting on a weekly basis and on some occasions twice a week, to hear the oral evidence being put forward by these groups. Although there was inevitably repetition and it was a very tedious and time-consuming task for the members of the committee, I think it has been a very helpful and important learning experience for the members of the committee, because the very repetition both of the number of criticisms and the number of proposals for reform will strengthen the hand of the committee in coming up with actual proposals.

As Senator Dooge indicated, the committee have already made proposals in areas such as the age of marriage, the formalities in relation to marriage, the area of nullity, and they are at the moment considering the remedy of judicial separation, and next month will look at the area of dissolution of marriage — the question of whether we should remove the prohibition on divorce. I hope that the committee will spend considerable time examining all aspects of this subject and will sit regularly during the recess, presumably with the exception of the month of August. There is no reason why the committee should not sit through the month of July and come back in early September to resume this work if we are going to come up with the well structured, well thought through and well considered proposals for reform in these areas which have been called for. There is another area which will also require very careful and detailed consideration, that is whether we are going to have, as has been almost universally recommended, a proper system of family courts, conciliation services and how these will operate. Although I deeply regret that it has been necessary to look for an extension of time, I think the work of the committee is of prime importance. The committee are beginning to produce results in terms of proposals for change. If we are prepared to sit regularly throughout the period when the two Houses of the Oireachtas are in recess, we will have no difficulty in completing our work by 1 December, which is absolutely necessary.

Mr. Fitzsimons

In view of the explanation of the position given by Senator Dooge, and expanded by Senator Robinson, I welcome the necessity to have this time extended. This is a very important committee, perhaps the most important of all committees. I am glad the work is not being rushed through and that sufficient time is being given to deliberations. I am equally pleased to hear it is expected that no further extension will be needed beyond December and I look forward to the report at that time.

Mrs. Bulbulia

As a member of this committee which was established on 12 July last I support this motion. Their terms of reference are now widely known but it is important to restate them in the context of the request to extend the date of the report. The committee have been asked to consider the protection of marriage and family life and to examine the problems which follow the breakdown of marriage. The terms of reference also require the committee to report back to the Houses of the Oireachtas after one year. This was an indication of the recognition by the Government of the importance of this whole area and of the urgency attached to it. It is also a measure of the realism of the Government which established this committee and requested them to make their report within one year. I regret that it has been found necessary for the reasons already outlined to seek this extension. As we moved into the work of the committee, it became apparent that to do justice to the subject and to examine in-depth the very complex problems arising from it, coupled with the difficulty in obtaining the necessary expertise in the area of staff, it was necessary to get an extension of the time.

The motion reflects the complexity and importance of the work which the committee are doing and the need to provide a thorough and comprehensive assessment of the steps which the committee feel are necessary to face up to the profound changes which are influencing marriage and family life in Ireland today. We met for the first time on 14 September last. At subsequent meetings we agreed to consider the factors which contribute to the breakdown of marriage. We had the very great pleasure of inviting a renowned expert in the area of marriage, Dr. Jack Dominian. He spoke to the committee and we had the pleasure of having an informal discussion with him over lunch. This was the starting point for the committee because this expert, Dr. Jack Dominian, with enormous compassion, experience and insight, set us off on the train of our work. Following that we invited interested parties to submit their views in writing to the committee by placing notices in national and local newspapers. We were quite overwhelmed with the volume of response which this invoked.

I share the experiences of Senator Robinson in finding space to accommodate all this material and files. Apart from the submissions made by professionals working in the field and bodies and societies concerned with the area, the flood of personal case histories was a revelation to me because, in my normal work, I do not come up against anything like the volume of human misery which was unfolded in these letters — many of them bravely and courageously appended their names and addresses, others preferred to remain anonymous. The welter of unhappiness and distress caused by marital breakdown in our community was disturbing.

Over 80 representative bodies, including religious denominations, political parties, social organisations and interest groups, made written submissions. I would pay tribute to them, because they involved themselves in meticulous research and considerable effort. It is very valuable to members of the committee to have this resource material which will be the basis for some hard information in the area of marital breakdown, because it has been found difficult to actually collate statistics and hard factual information. Not a great deal of research has been done in this area. We are really only beginning to face up to the problem. The efforts these bodies made to make the submissions to the all-party committee will I hope form the basis for much needed and valuable research in the area of marriage breakdown.

Individual submissions totalled something in the area of 600 and they were quite varied in their approach. Some of them were closely and well argued, and others were personal accounts of how the law affected them and their own particular marital and personal strife. We decided that some of the written submissions required oral amplification, and particularly for those of us who are not professionals in the legal field or in the social work field: it was valuable to call in many of these bodies and to have the opportunity of questioning them and probing some of the points they made in their written submissions.

We invited some 26 organisations to attend our meetings. The groups which the committee met are: the Presbyterian Church, AIM, the Group for Family Law Reform, the Order of the Knights of St. Columbanus, Dr. Jack Dominian, the Divorce Action Group, the Family Life Research Centre, the Irish Commission for the Laity, solicitors from the law centres, Dr. Barnárdo's, The Workers' Party, the Church of Ireland, the Incorporated Law Society, the Royal College of Psychiatrists, the Irish Theological Commission, the Irish Congress of Trade Unions, Gingerbread, the Catholic Marriage Advisory Council, The Family Law Reform Group of Dublin and Cork, the Irish Association of Social Workers, the Council for the Status of Women, the Dublin Regional Marriage Tribunal, and a new organisation called DADS. By any standard that is a very wide ranging representative group and there were similarities and differences in the views they expressed to the committee but meeting them was a useful and necessary exercise. It gave members of the committee an opportunity to clarify doubts in the written submissions and to test the credibility of these different organisations in the face of oral examinations.

This was all extremely time consuming and very often tedious and the substantive work of the committee was set back as a result. I am absolutely convinced it was worth while in that it gave members of the committee a very sound base from which to proceed in their work.

In the area of substantive issues, the committee have completed their deliberations on the causes of marriage breakdown, the age of marriage and the law of nullity. We worked on the law of judicial separation, that is, divorce a mensa et thoro last night. Next week we will be meeting for a day-and-a-half to consider the area of dissolution, which is really a question of grasping the nettle in this instance.

There are a number of outstanding issues. They include the structure of the courts in administering family law. There is certainly a consensus emerging from the committee that we would like to see the establishment of family courts. We need to consider the existing remedies of maintenance, guardianship and custody, administration of marital property, barring orders and recognition and enforcement of foreign judgments in family law cases. If we are to discharge our brief comprehensively, the date for reporting back to the Houses must be extended, which is the substance of this motion. The date 1 December was selected by the committee as the earliest date by which the committee could realistically address themselves to the remaining tasks and finalise the report. I would like to assure Senator Dooge that we are working very hard and that we will continue to do so in the months ahead, excluding August. I am confident we will have our report ready for presentation to the Houses of the Oireachtas on 1 December. The committee are determined that this urgent and vitally important task will be completed by that date. I would like to pay tribute to our clerk, Mr. Rory McCabe and our legal adviser, Mr. Durkan, for their invaluable assistance, and our chairman, Deputy Willie O'Brien, whose kind and wise guidance ensures that the committee are kept on the right track. I support this motion.

Mr. Ross

I hate to break the unanimity of this House but I am afraid I am going to have to do it. We have been hearing a debate about a committee set up one year ago, with very cosy all-party agreement. There was a great deal of relief in this House when this committee were set up for one reason and one reason only — and Senator Bulbulia was the only person who touched on it — because the issue of divorce would be referred to that committee. Senator Bulbulia has just admitted that next month they are going to grasp the nettle of divorce, one year after the committee were set up. It is an absolute disgrace that this House should congratulate itself on the work it has done in this committee when they have for so long avoided the issue which they were set up to tackle. I am not surprised. It was predicted by some of us last year that this was exactly what would happen.

It was also predicted by us, but diverted and deflected by Government speakers last year, that this committee would come back to this House looking for an extension at this time. I believe in the sincerity of Senator Dooge when he said that he would not be inclined to give them an extension in December. I am sure he would not, because it would be embarrassing for them, but I do not see why they should not have an extension in December if they are going to have one now; and I do not see why they should not have an extension next June if they can have one now, because the report they produce at the end will have no legislative effect whatsoever. The only power the committee have is to report to both Houses. We saw a 1966 report which made recommendations on marital breakdown and that is still in the Library of Leinster House and in every other library in this country and it still has not been acted upon nearly 20 years later. The committee have a cheek to come back to his House and ask for an extension when, one year later, they have not even tackled what they regard as the nub of the problem. These committees cost a lot of public money and a lot of public representatives' time, and if they are not going to tackle the nub of the problem after one year they should be abolished. That committee when they were set up were bogus; they are a bogus committee now and will be bogus when they report.

I do not accept the excuse of Senator Dooge that there had been difficulties setting up this committee. This committee was set up last July, eight months after the Government came into power. For them to say, having been set up last July, that they had difficulties in setting up again, is absurd. Why was there no permanent staff? Who is governing the country? Why set up a committee before it was decided whether or not there should be a permanent staff? It is no good saying we set it up after a long time and then we had difficulties. These difficulties should have been anticipated. There may have been difficulties in actually getting all-party agreement to set up the committee but they had plenty of time to decide the terms of reference and whether they were going to have a permanent staff. It is a very weak excuse. This extension is purely a dodge in regard to divorce. The other problems which the committee have considered are subsidiary, and although the terms of reference of the committee do not mention divorce deliberately, this committee were set up purely and simply to dodge that subject.

Let me anticipate something else. They will successfully dodge that subject because whatever recommendations they make the Government in power, will sit on them, even if they can agree, for a very long time. It is indicative and symbolic of the attitude of this Government to the liberal issues that they are now asking for more time. What happened to this so-called liberal, left, radical Govrernment when they got into power? They ask for an extension on divorce and produce a sectarian amendment. What has happened to the Bill on family planning which was promised, and two years later has not been seen in either House of the Oireachtas? This is a question to the Government and not to the all-party committee: if this all-party committee are doing such important work, why can we not have a referendum on divorce parallel or before they report? Would it not be more powerful and more useful to that committee — if they are going to make recommendations of any value, which I doubt — if they knew what the result of a referendum on divorce was before they produced their final report?

An Leas-Chathaoirleach

Would Senator Ross get back to the motion, please?

Mr. Ross

I am discussing the reasons which I think are very relevant why the committee should not be given this extention. If the committee are doing so much work and if they knew they would be asking for an extension, which has been quite obvious for at least three or four months, why did they not do the House the courtesy of producing an interim report on the work they have done, instead of coming blandly to the House knowing full well they would get an extension by an all-party conspiracy?

Mr. T. Hussey

I support the request for an extension of the time limit on this committee to report back to the Houses of the Oireachtas. I do not accept, as Senator Ross claimed, that this is a bogus committee because those of us who are members of that committee realise the volume of work they have undertaken, the huge pile of submissions, both oral and written, they have examined, and all the other matters which the committee have been dealing with since they were set up last year. We got off to a bad start because we did not have the required staff, but that problem has been overcome.

It is important that the committee discuss in detail every aspect of marriage breakdown. It is a very big problem as we know from the submissions which have been made. It is not something on which the committee should rush to produce a final report and for that reason it is important that we be given a little extra time to prepare our report and to submit it on 1 December.

Mr. Ferris

I want to refer to Senator Ross' comments. Obviously he did not look at the original terms of reference of this committee. In the Seanad debate of 6 July 1983, at column 831, the membership of the committee was decided and the terms of reference included the consideration of the protection of marriage and family life, the examination of the problems which followed the breakdown of marriage, and the committee were to examine the problems which follow the breakdown of marriage and to report to the Houses of the Oireachtas. It is a little bit naive to think that this committee should confine itself to one particular area in this vital social problem area. I agree that there are major problems in this area, but to suggest for one moment that just the narrow area that the Senator has defined is the answer to all the problems is naive. The people of Dublin decided that was their attitude to the problem also in a recent poll which was carried out. It is unfair to this committee, which have been working extremely hard. I am not privy to the committee's work because I am not a member but I have read with interest many of the submissions that have been made and the way they have handled them. The question of divorce will be discussed by them and, as has been outlined by Senator Bulbulia, it is a problem. It may not be the answer to many of the problems that are involved in marital breakdown. It certainly is not an answer to the problem of the protection of the marital state and family life. Because of that this committee should be given every facility by this House to ensure that when they do report to us, which they are required to do by order of this House, then we will have an opportunity as a House of the Oireachtas to discuss the total implications of their work and what legislative measures will be necessary to overcome the problems. It is in that spirit that there is unanimity on all sides, with the exception of Senator Ross, that this committee should be allowed to have sufficient time to do this job.

(Interruptions.)

Professor Dooge

I would like to respond to a few points that have been made. Firstly, there has been some discussion about the question of the start-up problems of this committee. There was a very real problem in regard to all the committees. Senator Ross indicated that could have been avoided but we must face the reality. He indicated that it should have been possible to ensure that staff would be available even before the committees had been set up. That is completely unrealistic. It was a tough job to get the Department of the Public Service to agree to staff after the committees had been set up. Those of us who are members of these committees were of one mind in regard to the necessity of having permanent staff dedicated to the committees set up without delay. We had a real battle. Ultimately we got the staff. If we had said: "We should not set up the committees, we should not pass motions in Dáil Éireann and Seanad Éireann, we should go along to the Department of Public Service and say we are thinking of setting up committees, we are going to set up committees, we are going to bring in a motion in one month's time to set up a committee, please give us staff," we would have got absolutely nowhere. The only way of achieving what was ultimately ahcieved was to get agreement, and in regard to this particular committee it was not easy initially to get all party agreement in regard to the scope of the committee. That was the first hurdle that was overcome.

The hurdles in regard to staff were overcome. Maybe we knocked the hurdle a couple of times but ultimately we scrambled over it.

What we want to do with these committees is to make sure this does not happen again. Already the Leader of Dáil Éireann is taking up the question of trying to ensure that there is a permanency in regard to these committees, that the transitional problems do not occur as we go from one Oireachtas to its successor. I will be joining with him in urging the Government to ensure that this is rectified. We need continuity of committees, we need continuity of staff. That is what we should be turning our minds to in this regard.

The request of this committee is a reasonable one. Senator Robinson and Senator Bulbulia mentioned the volume of submissions which have been received. Senator Bulbulia stated that the volume of these submissions was a reflection of the volume of human misery. Everyone on all sides of this House is concerned about the volume of human misery, in regard to the strains on families, strains on partners, in the modern world. Quite naturally there are differing views as to how this problem should be met. There are differing views as to what is the balance between the alleviation of this human misery and the general social effects of a change in regard to what has been for many hundreds of years the traditional view of the vast majority of the people in this country in regard to marriage. Incidentally, it was not always so. If one looks back over the history of divorce it is a most interesting one. Prior to the 11th century when the situation in regard to divorce in the Catholic Church was not the same as it has been in recent centuries, it was very often said in Ireland that one should seek an Irish divorce rather than a Roman divorce because an Irish divorce was easier to get. In this context Rome has conquered and we have taken the Roman view of divorce in latter centuries.

Senator Ross made two specific suggestions. He made the suggestion that this committee should have brought in an interim report and that we should have an immediate referendum on divorce. The first of those suggestions is inadvisable and the second suggestion could possibly be disastrous. My position on divorce has been clear for many years. I signed the report on the review of the Constitution in 1967 which was the first time that public representatives, of all parties, unanimously declared that the constitutional prohibition on divorce should go. I make no defence of the substitution that was made at that time. I supported that report on the grounds that it was for more important to break through the psychological barrier of removing the constitutional prohibition, that was the primary thing, and accordingly I was less concerned about what was agreed as a substitute.

We must recognise the reality. Senator Ross says there should be an immediate referendum on divorce. To my view the probable result of doing this would be to postpone for ten years the removal of the prohibition in the Constitution. The people of Ireland are compassionate people. When the reality of the present position in marital breakdown is brought home to the Irish people, I believe there will be — it may be slower than many of us would like — a substantial shifting of opinion which will result in the removal of the constitutional prohibition on divorce and subsequently the enactment of carefully limited divorce legislation. But an attempt to do that before a substantial majority are convinced of its necessity is to copperfasten the present situation. I think that would be utterly disastrous.

Equally, it would be highly inadvisable if the committee had brought in a report on the matter it has been discussing, the causes of marital breakdown, without going on to really grasp the nettle — the phrase has been used in this debate today — because then there would be a real temptation to postpone that later discussion. I think the committee has made the right decision, saying it has been given broad terms of reference and that it should come in with a broadly based report.

It is for those reasons that I believe the committee should be given these extra months to allow it to complete its work over the whole front. As I said before, if the committee show signs of delay — the proposal is the committee will meet during July and will meet during September — and if the committee do so and honestly set down their views I believe they can produce a report by the end of the year. I will guarantee that if that report is produced there will be no delay in debating it in this House. It is a question with which I think all public representatives are concerned, but in regard to it it is foolish to think that all the Government have to do is to decide there should be an immediate referendum on the question of divorce and that this is going to solve the problem. It will solve nothing. It will make the task of social advancement in this regard more difficult rather than easier.

I recommend the motion to the House.

Question put and agreed to.