Report of Joint Committee On Marriage Breakdown: Motion.

Professor Dooge

I move:

That Seanad Éireann welcomes the Report of the Joint Committee on Marriage Breakdown, urges the widest possible debate on its recommendations and calls on the Government to consider the holding of a Referendum on Article 41.3.2º of the Constitution.

It has become customary in this House to discuss the reports of Joint Committees and to discuss them under the formula of a simple "take note" motion. In most cases the motion is formally moved either by myself or by the Deputy Leader of the House and the debate then initiated by a spokesman on behalf of the Government. In this case the subject matter is so important — and indeed the motion itself calls for the widest possible debate — that therefore it is appropriate that I should do more than merely formally propose a motion initiating debate. I do not intend to speak at any great length and we will be relying on those members of the Joint Committee on Marriage Breakdown to make major contributions so that they can bring into the debate in this House many matters that are not part of the report and indeed are not available in the public domain. We have, of course, here the report of the Joint Committee as presented and also the evidence of various organisations. But one of the features of the work of this committee is the extraordinarily large number of personal submissions which were received by the committee. From my private conversations with members of that committee I think that many of them were certainly affected in their thinking on this problem by the realisation, through these personal submissions, of the widespread and intense nature of the problem on which they were reporting. I certainly would welcome the fullest possible contributions from the Members of this House who were members of the Joint Committee and who, as it were, represented the rest of us.

In the words of the motion, I think we should welcome this report. Having read through the report I think the Joint Committee really deserve our congratulations. Members of the House know that I was critical — at times I think I was petulant — in regard to the continual postponement of the submission date. But, that being over, the successive postponements eventually finished. There was a postponement for six months, then another for three months and then one for one month and two weeks. At least it was going down and we did get the report in the end.

We are indebted to the members of the committee. The whole Irish public are indebted to the members of the committee for the way in which they did stick to the task, got it done and gave us this report. We should express our indebtedness also to the Chairman of that committee, Deputy Willie O'Brien. I have known him for many, many years, long before we were colleagues in this House together — I met him first when I canvassed him for a Seanad vote about 24 years ago. I have always been impressed by the thoroughness with which he tackled anything he had to do and with the high degree of common sense which he showed in regard to his attitudes and opinions on a wide range of matters. He was a good choice for chairmanship of this committee, he has done a splendid job and this tribute should be paid to him here publicly in one of the Houses which caused this committee to be set up.

The report is, indeed, welcome. We have here a great deal of information, information that, of course, was available to the experts but available now in a succinct form for Members of this House and, above all, for members of the general public. Information with regard to the legal situation is here in easily acceptable, readable form. Information with regard to statistics is here — perhaps not quite so readable as the description of the legal position. We have in the report a reflection of the thinking of the committee on the various topics which came up. We have a summary of the views that were expressed in the evidence which was submitted to this committee and, in the end, we have a report which contains a balanced approach to this extremely difficult problem. That is the headline we should follow in our discussion of the report — to maintain a balance. We have here now a basis for a public debate. It is indicated in the motion that it is the view of the Government side of the House that this should be a full public debate. Thanks to this report it can be an informed public debate. We have now a factual basis on which to go in regard to this report.

Before going on to discuss briefly a number of topics that are raised for discussion, I would like to say something about the structure of the report. I do not know whether it is the academic in me, used to looking at theses and reports, but I always tend to look at the structure of a report. I think this report would be more readable if a little more care had been taken about its structure. When we look at the way in which the report is divided up into chapters we find, for example, that chapter 5 is three and a half pages in length and chapter 7 is 57½ pages in length. This interferes to some extent with the question of easy reading. Having read the first six chapters which vary in length — some are one and a half pages; perhaps that is not a fair one to take because that is merely the reference to the statistics and if the statistics had been taken from the appendix and put in, it would be very large — we are plunged into this very large chapter dealing with the question of legal remedies. The report would have been easier to read if that chapter had been broken up. It does, indeed, divide itself into three sections. It deals with the broad question of nullity; it deals with the question of separation and maintenance and it deals with the question of divorce. I say this not because I am looking for something to criticise about the report but I think it is only right when we receive a report from a Joint Committee that we should discuss matters like this as a guidance for other committees. I say this because it is very important that this report should be the basis for a full discussion and this will be true of many reports in the future. It is important that these reports be as readable as possible.

Going on to discuss the contents of the report, the chapter which contains substantial opinion and recommendation is chapter 3 which deals with the question of the protection of marriage and family life. There are recommendations here with which we can all agree. It is inevitable that the age for parental consent should be reduced from 21 to 18 following the reduction in the age of majority. The recommendation is also here that equally the age for marriage with consent should be raised from 16 to 18. Whereas before those under 16 had to receive the permission of the court to marry, permission is now required for those between 16 and 18. In my view, — and I am not an expert — these are reasonable proposals which should be supported.

Chapters 4, 5 and 6 can really be taken together. They deal with different aspects of the question of marriage breakdown. Chapter 6 deals essentially with the statistics, chapter 4 with the nature of marriage breakdown and chapter 5 with the problems caused by it. The subject is well treated in this report. The personal misery which is now present in far too many cases, were this problem to be ignored, was reflected in the personal evidence. It is a weakness that the extent of human tragedy which exists is not directly reflected in the report. The members of the committee had the advantage of evidence of the extent of the personal misery which those of us who read the report do not have. In reading the report we should not forget this aspect.

If I were to go into this in detail there are some aspects in the report with which I might differ. I would like to draw attention to paragraph 4.3.10 which deals with the question of the effect of alcoholism and drunkenness in marriage breakdown. It appears that the committee attempted to say here that drunkenness and alcoholism do not always lead to marriage breakdown and when they do, they are not the single determining factor but in trying to emphasise that point they have gone a little too far the other way. Paragraph 4.3.10 states:

The view held by researchers is that excessive consumption of alcohol which results in abuse of this nature is not in itself a cause of marriage breakdown, but may conceal a failure in communication or may reveal a personality defect which, for any number of reasons, is only released through excessive consumption of alcohol.

I think the committee have gone too far in the other direction in that sentence. There is almost a suggestion there that this is a factor which is present but that marriage breakdown would occur even though there were not this factor. I find that very hard to accept from what I hear from social workers who are dealing with the problem of marriage breakdown. One hears from lawyers who are concerned with the final stages of dealing with this problem.

I find it hard to believe that if we could conquer the question of excessive drinking in this country — whether it is drinking under the compulsion of alcoholism or whether it is drinking for social reasons that interferes with home life — we would not reduce the degree of marriage breakdown. There is no doubt that we would reduce the degree of misery. I feel, this added factor in a number of cases is the factor that pushes marriage beyond the threshold to final collapse. I take mild issue with the way in which the Joint Committee have expressed their opinion in this regard.

Chapter 5 which deals with the consequences of marriage breakdown is well written. We must ponder on what is being said here. It deals not at great length, because that was not their function, but it deals in outline with the question of emotional, social, legal and economic consequences of marriage breakdown. In regard to statistics, we have them here but we also have the comment by the committee that we do not yet have sufficient statistics in order to work out exactly what our situation is. I concur completely with what the committee say in paragraph 6.4:

The committee is of the opinion that any future census should seek to ascertain precisely the incidence of marriage breaksown as manifested by separation or desertion.

I support this fully. Let us have an end to the pussy-footing nonsense that went on in regard to the interpretation and processing of recent census forms. What we find out may be unpalatable; on the other hand, things may not be as bad as we fear but let us know the truth; let us quantify the situation as we seek to deal with it. Nothing is gained at all by endeavouring to fudge these issues. There is enough conflict between civil and canon law. There is enough difficulty in determining what the status of people is: at least let our census be factual. We cannot prevent people using the results of that census to bolster their arguments in favour of their own position but let the argument not get into the holding of the census and the very recording of the position.

The great length of chapter 7 makes it difficult to read. My comments are first devoted to what I think of as chapter 7a which deals with the question of nullity and occupies pages 33 to 43. This is a good discussion. It is not the first discussion we have had in recent years. We had the report of the Attorney General in 1976. We had the report of the Law Reform Commission a few years ago. We have had judicial interpretation of the law in recent years but the result of all these recent developments over the last decade or so has been in the direction of further confusion rather than in the direction of clarification on this problem. The discussion in the report about the situation that has arisen is clear and the recommendations made are ones that could be followed. We are operating here under an 1870 statute. We have all of the problems created by difference in interpretation of nullity in ecclesiastical and in civil law. This must be cleared and I think the committee has pointed the way well.

In what I look on as chapter 7b, on separation and maintenance, which is a quite substantial section running from page 44 to page 70, the committee has brought forward good sensible views. On the question of judicial separation, they have recommended the abolition of the technical defences. The most interesting thing which the committee have said in this regard is in paragraph 7.3.8.2. These recurring decimal points indicate my earlier point about this chapter being too long. This particular point which occurs on pages 49 and 50 is in one of the most important paragraphs of the report. It is important not only in regard to the question of nullity but it also represents a very substantial contribution to the question of discussion of divorce as a remedy for irretrievable marriage breakdown. The committee in paragraph 7.3.8.2 give a list of circumstances which in their opinion constitute irretrievable breakdown of marriage. I commend the committee for having done this. There must have been a temptation not to deal with this issue but just to keep talking about the phrase "irretrievable breakdown of marriage". I commend the courage of the members of the committee, and I include all the members of the committee in this, in coming forward with this extremely important paragraph.

There is no need for me to read out the points. My point is not even whether I agree or disagree with them but about the central importance of this. It could be easy to overlook it even though there is a reference back to it. We have a group of Deputies and Senators who, over a period, dealt with this problem and came up with their definition of irretrievable breakdown of marriage. This is important not only on the question of judicial separation but it is important also in regard to the ultimate debate about divorce.

I have a problem on paragraph 7.4.14. I would like to quote it and then I would like to ask the members of the committee would they tell me what it means. Paragraph 7.4.14 which starts at the bottom of page 55 which deals with defaulting on maintenance payments reads:

In the above matter, the Committee is conscious of the considerable time and expense involved for litigants in pursuing maintenance defaulters.

Here is what I find is the difficult part

and the need to balance this against the constitutional responsibility placed on the State to protect marriage and the family.

I do not see a strict logical connection between these two ideas. I may be missing something in my reading of that paragraph, but I certainly would be glad if some of the members of the committee were to enlighten me as to why there is an actual balance and why there is a conflict at this particular point.

In regard to the question of property, again the report emphasises the need for study here and for legislation. I am glad that they say we should not rush into legislation. It is an extremely difficult area. The pity is that the study that was called for earlier has not yet taken place so that we could proceed directly to legislation. As the committee indicates on page 64 of chapter 7, there should be no further delay in getting down to a thorough study of this particular problem. One trusts that there will be no further delay.

In regard to the question of barring orders, this, in my view, is an essential provision: the law for the protection of women in an impossible situation. It is still an extremely crude instrument. There has to be more thought about this subject. We started off, with the 1976 Act, with the basic idea that this was good, but there were many disadvantages. There was no power of arrest; there was no power of enforcement of the barring order. That was remedied in the 1981 Act, but the legislation is still crude. It is true to say that there are other orders which would have the same effect as a barring order which can be obtained where physical violence itself cannot be proved. This is an area in which the committee does not point the way as clearly for us as it does in other areas. Then we have chapter 7c which deals with the question of divorce and occupies about 20 pages of the report. Here, of course, the report points out there are a number of questions. There is the question of the constitutional ban on divorce and the question of the advisability of subsequent legislation and the form which such legislation might take. I have no doubts whatever on the question of the constitutional ban on divorce. Indeed, I am one of the political survivors of the 1967 informal committee on the constitution which commented in regard to this particular constitutional provision and I quote from the report of 1967:

It can be argued, therefore, that the existing constitutional provision is coercive in relation to all persons, Catholics and non-Catholics, whose religious rules do not absolutely prohibit divorce in all circumstances.

That is true of Catholics as well as non-Catholics because let us be absolutely clear on this, divorce is not something that is, under all circumstances, contrary to natural law. It is not something on which there is an absolute prohibition in all circumstances. I stand by what was said then and it is my opinion today. I do not defend, and would not seek to defend under the circumstances today, the particular solution that was put forward by the 1967 informal committee on the Constitution. The position in that committee was that if all its members were unanimous that fact was recorded. If they were not unanimous there was no majority or minority opinion recorded, merely a listing of arguments. At that time, even though I had the greatest reservations about the particular solution put forward, I thought it was important not to break the unanimity of the committee when the committee were unanimous that the constitutional prohibition should be removed. That was the important thing. There have been many changes since then in regard to public opinion but, unfortunately, there has not been a change in regard to this particular matter. It is true to say that people are more ready now to accept such a recommendation than they were then and I trust that it will not be long before the people are so ready for such a change that such a change can be made.

We must take a balanced view on this question. The committee have done a good job in dealing with the arguments for and against divorce. They have summarised them well. It is important for all of us, no matter what our personal view is, to consider the arguments that support the side which we advocate as well as the arguments in the other direction. At least we have advanced in this country to the situation where most of the public protagonists no longer believe that this is a black and white question. The critics of the proposal to remove the prohibition from the Constitution are making very different arguments today from what they made in 1967 when an all-party committee recommended its removal. The arguments which are being made, for example, by the Catholic Hierarchy, are being made on the basis of public order and on the basis of a balance between the remedying of a situation of human difficulty and misery and, on the other hand, what they see as the requirement of public order and of the social order. This is a very distinct advance. This is the way in which the debate should continue. I do not believe that divorce is an absolute right which an individual can claim or that it must be allowed automatically. My opinion is that, on balance, in the situation as we see it in this country, the possible dangers to the social order by the introduction of a very strictly limited law on divorce do not outweigh the benefits that would flow from such an action. I take that, not as a question of black and white, but as a reflection of my own personal opinion on where the balance lies.

The committee have done a good job in what they have said here. They have set out what would be the effect if we do nothing and what would be the effect if we change and again we must commend them for going forward and discussing the question of the nature of possible divorce legislation.

What they said in regard to what they consider to be the conditions for irretrievable breakdown becomes of great importance here. I am quite sure that this question is going to form a large part of this debate but I do not want to go into it in any further detail now. I want to emphasise that this is not the only thing in this report. I want to emphasise that to act on the question of divorce is not the only thing we can do to improve the lot of people who are in marital difficulty or whose marriages have seriously broken down. There are, indeed, a number of immediate steps which can be taken such as immediate steps in regard to the establishment of a proper mediation service and immediate steps in regard to the establishment of family courts which can act in an objective and consistent manner, which is not true of our courts at the moment. I am not trying to suggest that our courts are not objective; our courts are objective but they are not consistent. We have inconsistency here, because of the way in which marriage cases are dealt with. They are not dealt with by judges who have specialised in this area or by judges all of whose work is in this area. Consequently, there is, inevitably, a degree of inconsistency which, in an area like this, is most damaging. What is recommended in this report in chapter 8, in regard to mediation in particular, is welcome. I think the committee have argued well that there should be an independent mediation process. The arguments they have put forward here stand up.

In regard to the question of a family court the committee have set the scene well. I certainly advocate that there should be the fullest possible debate on the question of the removal of the prohibition in the Constitution and the possibility of divorce legislation. I stuck my neck out in 1967, when it was pretty lonely to do so, on this matter. I believe there must be the fullest possible debate. It would be a tragedy if we concentrated entirely on the question of the prohibition if we had a debate in regard to the question of divorce. In particular, it would be an appalling tragedy if there were a premature referendum in this country before a fully informed debate had taken place, and if such debate resulted in the retention of that particular prohibition for a long time to come, due to a referendum failure. All of these results could be tragedies. One of the worst things that we could do is to start a long discussion about divorce and think that that was the only possible remedy to the problem.

In this report there is the basic material for such a discussion on divorce, but there is much else besides. There is a great deal of good sense in regard to the question of mediation and in regard to the question of the manner in which the law could act. There is a great deal of sense in regard to the manner in which the law could be amended to improve the situation without going into the question of divorce. There are excellent discussions in regard to the longer term problems of education. They refer to the fact that part of education is education for living, not just education for getting a job. Education for the formation of personal relationships can be the foundation of a solid marriage. Let us take everything that is in this report. Let us not look at one chapter only, even if it is a very long one. We have here the material for going forward on a large number of fronts. For that we are indebted to the Joint Committee and for that I thank them.

Mr. Ferris

First of all, in seconding this motion from the Government side of the House welcoming the report of the Joint Committee on Marriage Breakdown I would like, with the Leader of the House, to pay a tribute to the members of the committee, the chairman whom he has mentioned, and the members from the other House. In particular, I would like to thank the Members of this House, including yourself, a Leas-Chathaoirligh, and Senators Katherine Bulbulia, Catherine McGuinness and Mary Robinson, and Senator Tom Hussey. The committee have had, in fact, many months of very difficult and delicate discussions and negotiations. They have accepted the presentation of documents from many sources. The committee have come up with what is a major document on this area of marriage breakdown.

Suddenly everybody in Ireland, particularly people dealing with social legislation, has become keenly aware that we are now faced with a new problem. In this area, unlike other areas of social legislation which have been debated and amended by legislation, or otherwise, people came forward in a matter of privacy regarding marriage breakdown and the problems arising from it. We who are active in public life must admit, from our dealings with people in this category, that there is a considerable amount of difficulty in what would normally be accepted as a stable family situation in Ireland. We come across bad situations arising from marriage breakdown, such as claims for the deserted wife's allowance, claims for the deserted wife's benefit, claims for assistance in connection with barring orders, and the rehousing of people who are thrown out of their homes with their families. We have to address those problems as best we can.

I contend that there has always been marriage breakdown in Ireland. It is inevitable in human situations that there should be. Any situation, even with the best will in the world to make it perfect can change. Unfortunately, in some marriages things change for the worse and the marriage has then irretrievably broken down. I contend that even if there was marriage breakdown in Ireland at some level which we may not have addressed 20 years ago, the rate of marriage breakdown is now obviously on the increase.

I would like to say at the outset that the Labour Party have been unequivocal on this issue for a long number of years. They were probably one of the first political groupings in this country to address themselves to the problems and to set up special case studies and committees to look at it. They had the courage to come out and say from their research and from their interest in this that, as the Tánaiste said, whereas the vote in specific instances is a moral decision for the people concerned — by moral I mean they have to take into account their religious beliefs and religious teaching — from a legislator's point of view legislating for it is a matter of right. That fairly sums up the position of the Labour Party in this area. It is easy to say we should have a referendum in the morning, or next week, or in the lifetime of the Government. Of course I would go along with that. If there is not a referendum in the lifetime of this Government it could be postponed until another Government with a bit of courage in this area might be prepared to sit down and consider all the aspects and legislation for it.

In trying to come to an agreement with my colleague, Senator Dooge, about the wording of the motion which gave this House an opportunity to discuss it, I had this Government in mind when I used the words "calls on the Government". The Government will honour their obligations having gone through the process of setting up the joint committee and listening to the debate that was initiated in the Houses of the Oireachtas. I would leave it to the movers of the amendment to decide why they felt it was important. Many people on my side of the House would like to put a date on it too.

However, in trying to make a contribution to this debate I must have regard to both the necessity for a referendum and the outcome of the referendum when it takes place. I have a duty to ensure that when the electorate are faced with this they will know all the sides to the problem and all the consequences arising from it and, when they give a decision, that decision will not be based on political considerations. As Senator Dooge said, this is not a black and white issue. It is certainly not a political issue and it would be a tragedy if people were to "play politics" with this delicate subject. I hope people will be informed by all of us on the total implications and the necessity for a positive response to a referendum. In my contribution I will deal with how I feel that should be done.

I commend the committee on the way they dealt with the various contributions made to them. There are arguments on all sides. I come from an area in which both sides are put to me regularly. It is my obligation to examine both sides and to come down in favour of one side or the other. I do not have any problems about that whatsoever, but I do have a responsibility to outline what I feel are the problems.

The joint committee said the reasons for marital breakdown can be divided into two phases. In the first phase which is in the first five years of marriage the breakdown is often brought about by failure to establish the necessary minimum relationships, whether physical or emotional. The second phase concerns marriages which have negotiated the first phase with reasonable success. In the second phase relationships are subjected to different stresses such as the increased maturity of the personality with the passing of time, the new ideals which may not be recognised or met by the partner, and the arrival and the rearing of children which are major developments in any family relationship and a blessing from God. The arrival of children and their rearing —and all the trauma which is created by such events — is a difficult period, particularly for the mother, and creates some stresses and strains.

It is also recognised by most people who address this problem that the earlier the marriage starts the greater are the likely changes in the personalities. If there is no ability to adapt to the personality changes during these earlier years of marriage, then the marriage could be in difficulty. The marriage will experience many new problems when the children begin to grow up. They will leave the family home and both parents will then be exposed to a new challenge in redirecting their emotional and social lives, having completed their task of rearing their children. Again, this is a particularly significant time in the life of the mother. When she has fulfilled her obligations at home she finds herself suddenly with time on her hands and the social consequences of that. This can also create strains on the marriage.

The extent to which the stability of the marriage is subjected to pressure will vary. Pressure is brought about from within the relationships, from the interaction of the personalities of the spouses on each other and from outside the marriage by social and economic and even environmental pressures such as bad housing, unemployment and the changing values and ethos of society. Most marriages in Ireland are able to cope with these pressures but in an increasing number of cases these pressures can lead to friction and conflict which cannot be resolved and which can lead to marital breakdown. We know that in housing estates, with the low-cost housing developments, where the front doors are all adjacent to one another a ghetto type situation is being created which makes it difficult for people to retain some semblance of privacy around their own front door. In a planners mind this does not look like a situation that might lead to a problem. You have only to canvass in an area like this, as we did recently and speak to people at ten doors and you find out that of the ten couples perhaps only two agree with each other. It is amazing. It came forcibly to my attention during the last campaign and it worried me. When we develop these environmental situations we are adding to the problems of people trying to tolerate one another on a daily basis.

In addition to that, there are personal factors. Marriage fluctuations can create moods in men and women, in men particularly as I can only speak for them. We all have our moods. These fluctuations happen and it is natural that they create tensions. There is the question of loneliness. I often wonder how the wives and husbands of politicians can tolerate the loneliness that goes with being associated with politicians, and the amount of time we are away from home day and night, week in, week out, in pursuit of our public functions. The public never realise that a politician is lonely despite being in the public eye. The amount of time a politician can spend with his or her family is minimal compared to the time that should be spent with them. In other family situations, apart from politicians, there is this element of loneliness, and there is undue sensitivity on the part of the person who is lonely. For those who are away there is a feeling of guilt and remorse and a lack of self-confidence. There is a loss of temper, a need to dominate and perhaps not to be flexible enough in a marriage. All of these create social tensions in the human relationship which make the holding together of a marriage more difficult.

Marriage itself is a very important institution. The Constitution has a special responsibility to the marriage and to the family unit. Marriage is a legal contract entered into by the celebration of the marriage ceremony. By law, marriage creates a new relationship between partners and alters the status of both of them. The essence of marriage is a formal commitment made in the presence of witnesses to create and maintain a lasting, stable relationship between the spouses. That is the aspiration of all of us who have entered into the married state. We recognise that.

According to Article 41 of our Constitution, the State recognises the family as the natural, primary and fundamental unit group of society. Nobody in this House or outside it would argue with that. There are problems in some of those relationships and in some of those family units. But pejoratively speaking, all of us would accept that it is a very natural, primary and fundamental unit and group in society. It is obviously the basic unit. It is essential and original as well. It is natural. The institution of marriage can be found all over the world. Attempts to abolish it all over the world have failed. Many countries have divorce legislation. The marriages of many Irish people living in England, where divorce laws are available, have succeeded. Despite the availability of divorce, it has not put pressure upon them to run off down to the registry office every other week. Attempts to abolish the marriage as a concept have failed.

There are basic elements which are common to all families, the ordinary human relationship between husband and wife, the public marriage ceremony which is regulated by society, the definite habitat of the home, the provision within the home for childbearing and child rearing. There is also the important feeling that your home is your kingdom. It is your own privacy. It is something we all look to. Home is associated with the family unit but there are changing attitudes in society now towards the family. There is the changing attitudes that people need and are entitled to freedom of choice, which is a basic fundamental constitutional right. There is the right to express dissatisfaction, which many of us do and all of us contribute to it. Many social pressures to continue a marriage are now diminishing. For example, in Italy the identification of people in a marriage culture is increasing. In Ireland the opposite seems to be happening. There are demands on husband and wife to go where they like separately. Most of us would join in that expression of freedom of choice. Irish marriages in the past, perhaps, started off in Lisdoonvarna, or some such place, based on a contract commitment more than anything else. There was relatively little love in the earlier days when the matchmakers were busy. Marriages were decided on the number of livestock available from one spouse to the other or the marriage gratuity that followed. It was based on almost one and a half personalities. For a marriage to work as an efficient unit there must be at least two personalities. It has been proven where there are two people with similar rights which have been legislated for and have been proven, there is more likely to be success in that area than in one dominating another in the marriage situation.

There is also a problem in Ireland to which the Church is now addressing itself, the problem of relatively little preparation for marriage. There is no formal training in schools. There is a move now by the present Minister in the area of education in this field. There is a limited success in pre-marriage courses which are now run by various organisations, including Church organisations. That is a good thing. Many people entered into marriages with relatively little preparation. That, of course, was asking for trouble. There are changed expectations in all homes nowadays. There must be formal attempts to improve the quality of marriage if we can.

Senator Dooge spoke about the importance of not just talking about referenda or legislation in that area, but trying to improve the services to existing marriages which, with some assistance from the State, would survive the trauma they may be going through. In regard to improving the quality of the marriage, improving marriage counselling and areas of advice, should be part of any future law. The prerequisite for a divorce would be that you would have gone through the whole process of trying to make the effort. If all of us did not make the effort to try to survive and if there was an easy way out, then people might make no effort.

The family is a vital institution. It is expected to provide fundamental personal fulfilment and satisfaction to all the members of the family. Morally, this has meant a great shift in emphasis from duties and responsibilities to rights and gratification. In the area of family life modern society has created an area of social activity that sociologists have called the private sphere, which contains the world of private associations. The family is the most important institute in the private sphere. The private sphere is an area of life segregated from the great public institutions, notably the economy and the State. It is this segregation that characterises the family in our society.

Thus there has been a massive shift in the overall social position of the family. Today the barriers between the micro-world of the family and the macro-world of society at large are very sharp and clear. As a result, the individual between birth and maturity crosses a number of sharply defined social thresholds. Adults look on the family as a place of refuge. Many of us would agree that marriage is a place of refuge, a place of consolation when under pressure from the everyday life. It is nice to come home and be able to talk to somebody with a sympathetic ear. It is also a place where children grow up to come to realise that the family is a place in which they will remain until they go into the larger world. The family place is the locale of highly significant expectations for self-fulfilment and emotional satisfaction. The family is also taken for granted as an essential unit.

Three basic human activities are affected by the family: sexuality, procreation and primary socialisation. Within the family the child's significant attitudes are first encountered and the motivating of a child to have respect for its parents and for its home, for its elders and for society generally in preparation for its life ahead. The family is the place where that can best be found. The family also provides an individual with a name and determines his basic legal standing which is the whole area that we often discuss in the question of illegitimacy and so on. It is one thing the family does provide, a basic legal standing for children. It makes it not only possible to reckon the individual's descent but also provides the basic means by which individuals can be identified and located and put into statistics by the social order of the State. The family household is also regarded as the basic economic unit. If we are to do anything in the area of legislation which might disturb or disrupt or take as under that family unit, we have to look at how it is done and the implications of doing it and the implications of not doing it.

This brings us to the area of divorce. Everybody accepts that a divorce law is a corrective law. Two subsections of a Section 3, Article 41 will have to be removed if the public decide that there should be a positive response to a referendum. Firstly, they will have to decide if there is a situation in Ireland with regard to marriage which warrants correction. That is a matter for the Government. It is a matter for this House and I am satisfied that there is a situation in Ireland at present that warrants attention from experiences that have been related to me by constituents in regard to irretrievably broken down marriages.

On the other hand, people will tell you that there are serious negative sides to divorce. There are no figures available with regard to marriage breakdowns. There is a special section in the committee's report dealing with statistics. They have admitted that in their research they found it very, very difficult to quantify the actual statistics of marriage breakdown. We can only depend on the information available to us. A figure was mentioned of 70,000 broken marriages. There are also statistics available from some research which show that about 10 per cent of marriages eventually reach the courts for maintenance orders, or barring orders, and that is an indication of a high level of marital breakdown. I do not know if these statistics can be verified.

In the UK where divorce is legal, one in every three marriages ends in divorce. The highest divorce rate of all is in the USA. In Montana the divorce rate is extremely high. They have divorce on demand there which means that there can be dozens of divorces in one year. People are motivated by the Dallas-Dynasty syndrome and look on family life as they see it portrayed on the silver screen with the availability of divorce, marriage breakdowns and bed hopping with everybody and anybody. It is a pity that kind of attitude to family life is being projected through the media, particularly in America. Unfortunately, we see many American films on television. They tend to cloud and colour people's minds and I suppose this reflects the high divorce rate they have in America.

The Irish situation is probably different with the vast majority of people having strong religious beliefs. The largest religious group here would have reservations probably about changing the Constitution. It is to that group of people that we must address ourselves in advising them to make a major decision like this. Unless they are satisfied they will be very slow to change their minds.

Divorce as we knew it in the past was generally for the aristocracy because in divorce settlements you had alimony and large estates handed over to dependants and wives. If a man was wealthy enough he could get married and divorced as often as he could afford to distribute his assets to all his women. In the past, when we talked about divorce, we talked about that kind of divorce. Nowadays we are talking about ordinary poorer people with major problems. Something will have to be done about them.

Marriages here only began to be registered legally about 150 years ago. They were registered for the first time in 1858 and the only way you could get a divorce was by a special Act of Parliament. I am sure Senator Ross would love the idea that every divorce would be at his discretion in this House and that he would make a decision on it. We would then be able to go into the individual details of everybody's problems in a public way. In 1858 that was how it was done but, of course, that was a British Act of Parliament which probably made it a little bit more difficult for ordinary humans to be considered in a compassionate way. You could only do that if you returned your property to yourself. Up to 1922 there was divorce in Ireland. I am sure Oliver Flanagan will be delighted to know that when he started his life, divorce was available. I wonder would he think Ireland was a better place at that time than it is now. In the twenties there were many happy marriages. Admittedly, the country was an unhappy place. This is not something new. The Constitution which was written at that time wrote in these special protections for the family.

I am speaking as a person who comes from rural Ireland. In rural Ireland society is much more stable. There is less demand or need for divorce. There is always the expectation that marriage will survive in the country. People are too busy, too healthy and too happy going about their business to have marital breakdown problems.

We are inclined to think they always had divorce in Italy but it was only introduced in Italy in the sixties. When the Government get all the information, they can then make a decision on how to move forward in this area. The Government also need to know for social welfare reasons, for job purposes, for tax purposes and so on, whether a person is married. They want to be able to identify with statistics one's personal status. Otherwise, they would not be able to administer the social services and social welfare schemes and systems that we have improved and advocated for a long number of years.

We have to be able to make a decision on whether we want the prohibition on divorce to remain in the Constitution or to be removed. Article 41.1.1º of the Constitution says:

The State recognises the Family as the natural primary and fundamental unit group of Society and as a moral institution possessing inalienable and imperscriptible rights, antecedent and superior to all positive law.

That is a very strong section of the Constitution. It is a very positive wording and, to amend that wording, the law will also have to be very positive. Many of us believe that it should be amended. Many of us realise that to amend it in a positive way will take a lot of education of the Irish electorate, the Irish rural people, conservative as they might be. Even if they are liberally minded, people will always be concerned about the implications of changing that positive provision. That is what this debate is all about. It is not about whether we will have a referendum tomorrow, or next week, or at the end of the year. The Government should look at that positive section and see how it can be put in a referendum so that people will accept that it has to be changed. Article 41.1.2º says:

The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

That section is particularly important to all of us. Most of us would agree with that section. The Government, the country and the Constitution should defend the family institution and defend the family, as we understand it. If it is progressing, if it is successful and if it is doing what God designed it to do the Government, the State and the Constitution should defend and support it in every possible way. Article 41.2.1º says:

In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

That was a pious statement to make at that time. It is probably very true today of many homes. There are many women who make a major contribution to life and to the economy of the nation outside of their home and, thankfully, we have legislation which ensures that people have the right to work inside or outside the home and that goes for married women, single women and married men and single men. There should be an equality in this area and that statement, which might have been a pious one, still is believed and acted upon by the vast majority of the women in this country. The right for women to do otherwise is also enshrined and is properly stated elsewhere. Article 41.2.2º it states:

The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

I am sure that, although some mothers leave the home for economic reasons, because they find they have to have a second income to survive and rear a family, many of them do it for the self-satisfaction of pursuing a job or a profession that they have been educated and trained to do, and that is as it should be.

There are many other aspirations in this Article which at 3.1º states:

The State pledges itself to guard with special care the institutions of Marriage, on which the Family is founded, and to protect it against attack.

There are many families in this day and age under attack through economic circumstances, unemployment, poverty, vandals, old married couples in their latter years being attacked day and night in rural parts of Ireland. There you have a constitutional section in which you would wonder how much effort we have put into the actual protection of the marriage unit, of the home and the family. Article 41.3.2º states:

No law shall be enacted providing for the grant of a dissolution of marriage.

That is the fundamental problem involved in this resolution. That is why a Joint Committee sat down to look at the problems. Divorce in law is a corrective law and one would ask what rights would it conserve? It could be a legal separation with the right to remarry. The Joint Committee went through a whole lot of different areas of annulments and legal separations and divorces outside the jurisdiction and all sorts of other areas but none of them conferred the right to remarry. Our understanding from talking to people on this issue, is that apparently fundamental to any divorce law would be the right to remarry and have an opportunity to make a new beginning and achieve some happiness in life, if that was possible; to do that by some legal process if that was possible.

We have to accept that the law in regard to any marriage, whether it is in a Catholic church, a Protestant church, in a registry office or wherever else a marriage is contracted, must be seen to be a reasonable law. I suppose people would say that divorce elsewhere is now a kind of culture. It is fashionable in some areas. It is fashionable even to be in favour of it in some countries. It is probably fashionable in this country to be in favour of it. It is a social organisation and it organises the conditions of one's married life. The conditions that should be available and should be recognised before divorce is given would be that there would be a breakdown of marriage. In the words of the committee, in the words of most commentators now and even in the words of my own party, where a marriage is irretrievably broken down that would be one area in which one could legislate. I suppose there are many other areas. There is the area of marriages that are not blessed with children, which creates trauma, misunderstanding and unhappiness.

The Church even looks at these areas and occasionally uses that together with others as a reason for annulments. It would also have the important function of regularising what, in fact, are Church laws and State laws. There is no doubt at all in my mind that the Church has a major role in ensuring that its moral law is adhered to by the people who believe in it. The State has an obligation to legislate for all, irrespective of which Church they belong to, or what their beliefs are, if any.

There are many arguments against divorce. I have heard them all. There would be a fundamental change in the attitude of society to marriage. There would be fewer incentives to make marriages work. There would be less commitment and responsibility among those who are married. There would be less ability to cope with problems. There would be less preparation for marriage in the knowledge that it was easy to get rid of it. Children would be less secure, especially in times of conflict, because if divorce was easily available, in a time of a quick flash of temper or conflict the children would be insecure in the knowledge that they think, well, this home of mine could break up. There would also be the possible stigma on children and on parents where there have been divorces. There would be less emotional support for children. There would be bitterness and resentment among children, depending on which parent they were allocated to by law. There would be the economic insecurity and instability. Children would find themselves almost being bribed by individual parents to know which side they would take. Children then would feel insecure.

There are arguments that divorce would undermine society, create economic hardship, reduce incomes and that marriage ceremonies in the Church would lose credibility. These aspects are of the other side of the stories that have been mentioned to me. It is important in a reasonable debate that all the pros and cons should be put down.

Another point is higher taxation because of increased need for Government support in cases of hardship or support of the family which is a constitutional right. There would be more pressure on voluntary agencies to try to help and assist people. The legal separations would be inadequate if remarriage was automatic or desirable and then that would create other problems. As a country which statistically has a large Catholic majority, it would undermine traditional Catholic values enshrined in the Constitution. The vast majority of Catholics in Ireland would agree with that. I would have a different view. I would feel that Catholic teaching, if it is as strong and as good as what I hope it is, would have no problem in convincing members of the Catholic Church if they need convincing at all, that the morality of divorce is a question for the individual conscience. There would be added strains on associated families, in-laws, aunts and uncles; divorce in the community would make divorce more or less acceptable and, therefore, more common, and less effort would probably be put into trying to ensure that marriages survived.

Those are some of the arguments against it. Many of them probably would not hold up to individual analysis. People go to the Bible and say that divorce is against the teaching of Jesus. It is harmful to the children, harmful to society and everything else. Then you could also say that the teachings of the Bible are ideal. They are absolutely ideal if we could achieve the ideal situation in life. Would we not all love it? But we are all humans and being idealistic is probably too difficult. It is very very difficult. If you do not have divorce at all are you doing more harm to children who are living in marriages that are absolute hell and if love has gone out of a marriage what is the relevance of a marriage? What is the relevance of it for the couple or for their children?

The Tánaiste was right when he said that divorce for individuals is a moral decision but for legislators it is a matter of principle and right. The reason why I went for this motion rather than a Private Members' Motion was to allow the fullest time for discussion by all Members on all sides of the House with no limitations on the time and not confine it to a three hour debate. It is also the responsibility of the Government to initiate this kind of debate, to call for a debate and to take cognisance of what the debate shows up. This is not a party political issue. It is a matter of fundamental principle. There should be a conscientious debate, not that the electorate who will make the decision will be subjected to various political persuasions but will make their judgment on the information we try to transmit. The question for all of us is whether or not there should be legal divorce in Ireland.

This motion welcomes the report which is important as it represents a major step forward in trying to put together the various strands of the problem. It allows for this full debate on all sides of the House and asks the Government, following an informed debate, to decide to allow the Irish people to express their views in a constitutional referendum. This committee calls for a constitutional referendum. This motion calls for it and calls on this Government to hold it. The amendment talks about the lifetime of the Government. If the Government are not there one cannot talk about their lifetime, so we are talking about the lifetime of this present Government and saying they should do something about this problem during their lifetime. There is no ambiguity in my mind in that regard.

I want to state categorically that the members of the Labour Party in the Seanad group are in no doubt whatsoever that that is what is intended in this resolution. Otherwise they could have and would have put down an amendment. It is this Government who will make the decision as to when is the appropriate time to hold a referendum after the issue has been debated in full. There are many who are impetuous and want it tomorrow. That is fine. In fairness, the people who want that now are the people who have helped to educate the Irish people into stopping to consider this problem over a number of years when it was unpopular to do so. I compliment people like Senator Robinson who went through the process of putting down Private Members' Motions many years ago. To Senator Robinson's credit she was never found wanting in courage to say at any time what her views on the subject were.

I would like, however, to sound a word of caution because I come from a country area. The majority of people I know — and I know many people — will be very slow to change. That is not to say they do not understand the problems of marriages that have irretrievably broken down, but they will be very slow to change unless they have assurances that they will not be opening up the floodgates to easy divorce and so on. They will not change the Constitution unless they are sure that what we are doing is legislating in a very narrow category for people who have problems without creating many other problems for other people who could, with a little effort, make a marriage survive. They will be looking for assurances from the Government that, in legislating for people in difficulty, we will ensure that the legislation will protect existing stable relationships.

I do not know how the Government will do this. They will need to set down the rules that will apply to any legislation that would follow a referendum if the result were positive. They will need to have a prototype of what divorce law would be like if a positive decision were given by the people. The Government have a dual role here. They have to inform the people by this debate and they have to point out to the people what the consequences would be if the answer were "yes". If people do not know the possible and likely consequences of this measure they will say "no" and this whole area of social legislation will be put back another 20 years.

I am asking people with a genuine deep-felt commitment in this area to realise that there are people who would be very slow to say "yes" unless they knew what was to follow. I sincerely hope that, after a full debate in this House and the other House, and in any other forum, the Government will give this outline to the people so that they can decide positively in the referenduam. They will do so in the knowledge that they are protecting what should be protected — something that we are all proud of in this country — and that we will legislate compassionately for people who are genuinely in difficulty. That is my commitment.

I commend the members of the committee for their work in this area. I commend those responsible for all the documents that have come through the Law Reform Commission. I commend also all the other people who have addressed themselves to this problem down through the years. I hope the debate will be extensive. Although the debate is concluding today at 1 p.m., I anticipate that every week the Seanad meets, some time will be allocated to this debate so that, by the end of the day, Senators who want to contribute to the debate will have had an opportunity to do so and we will get a consensus on what we as legislators want to do, and advise the Government on what we want them to do so that the electorate can be informed on their responsibility when referendum comes.

Mr. Ross

I move amendment No. 1:

To delete all words after "Government" and substitute the following:—

"to hold a referendum on Article 41.3.2º of the Constitution within the lifetime of the present Government".

The versatility of the Government in avoiding this issue, or any immediate decision on the issue of divorce and the amendment I am moving, never ceases to amaze me. I was very surprised to see on the Order Paper this week that — having given a commitment — they managed to cobble together another form of words which fudges this issue. That is why I had to put down this amendment today. The history of this issue in this House is very interesting. I have a feeling of dejá vu about this Motion today because two years ago myself and Senator Robb — who, unfortunately cannot be here today because he has no cover in Northern Ireland for his medical practice — put down a motion calling for the deletion of Article 41.3.2º of the Constitution which prohibits divorce. Amazingly the circle seems to have turned. The amendment to that motion was put down on that day by Senator Dooge and Senator Ferris referring it to an all-party committee on marital breakdown. The issue was ducked. All parties in this House — and it is notable that on that day two members of the Labour Party broke ranks on a vote — were very relieved to refer that issue to the Joint Committee on Marriage Breakdown. I should remind the House that that all-party committee were given six months to report. After six months, as we all know, that all-party committee came back to this House and asked for another six months. They came back twice after that seeking an extension. The committee succeeded in having four postponements granted by the Dáil and Seanad. In the end, having faced the issue of divorce, the committee succeeded in making no recommendation about whether Article 41.3.2º should be abolished. After they had reported the Government put a motion to this House to be debated at no particular time merely noting, not welcoming, the report of that all-party committee.

Three weeks ago another strange thing happened. The Independent Senators, in Independent's time, put down a motion noting the all-parties committee's report and calling for a referendum on divorce. The Government again ran for cover. First of all they put down an amendment shortly before the debate was due and, on the day, they decided to stifle the debate on divorce and voted it down. In an unprecedented move in this House they decided there would be no debate on divorce in this House. Nevertheless they gave us a pledge that there would be a debate on their motion on marital breakdown in this House yesterday. I will forgive them for delaying it yet another day. We have had to wait quite a long time for it already.

A new Government motion was put down for today, a very careful, very ambiguous, very ineffective form of words. We know why this motion was changed. It was changed under pressure from Senator Ferris's party because they wanted to put in a recommendation on divorce and the other party in the Government did not. I welcome that pressure from Senator Ferris's party, but I do not think they got very far. The reason why I put down this amendment today, and why I do it quite openly and willingly with Senator Ryan, is that I see no specific commitment from the Government on this issue at all. I am not surprised that there is no specific commitment from the Government on the issue of divorce. This amendment asks for a specific commitment from the Government within their lifetime because we have had ambiguity and delay for much too long. This delay is deliberate. I see another example of it here today. I am sorry that when the issue of divorce comes before this House — 13 different times it has come before this House — the Government continually get themselves into contortions about it. They cannot for some reason, say "yes", or "no", "we are in favour of it", "we are against it", "we will or will not hold a referendum". We have to have ambiguity and we cannot get any commitment.

The motion before this House leaves us exactly no further forward than we were two years ago, not one inch and not one day further forward then we were and it is almost two years to the day since we had a debate on divorce in this House. It is vague and it is completely inconclusive. I would like to read the wording of it very carefully. "That Seanad Éireann welcomes the Report of the Joint Committee on Marriage Breakdown...." While I do not share the smug satisfaction which we have from all parties on the report of the all-party committee, I am prepared to accept that that all-party committee did a lot of good work in areas which were not related directly to divorce. That should be acknowledged by those of us who are supporting the amendment to this motion. But I do not think it is a matter for great congratulation that that all-party committee specifically avoided the issue which they were set up to avoid. That is what they did. They did a very good job. They delayed this issue for two years and avoided the issue after two years.

Mr. Ferris

They called for a referendum.

Mr. Ross

They called for a referendum without making any recommendation.

Acting Chairman (Mr. Harte)

Senator Ross without interruption.

Mr. Ross

They urge the widest possible debate on their recommendations. That is a very clever phrase and it is a very deliberate phrase. What does this phrase "the widest possible debate on their recommendations" mean? It is quite obvious to me what it means, because the widest possible debate goes on forever. The widest possible debate is open-ended. This new idea of the widest possible debate on this issue has only come out since the all-party committee reported.

I was under the impression that the issue of divorce had been debated for a long time. The only places where it has not be debated are in the two places where it matters which are the Dáil and Seanad. It has been debated in the media for 20 years and the Government say they want the widest possible debate. What they mean is that they want to have a debate in the Seanad, probably going on until October or longer, and then they will have a debate in the Dáil in the spring. Then they will want a large public debate on the issue and every county council will have to debate it to get a feeling for public opinion and we will still be debating it when it comes to the next general election. That is what they mean. The motion goes on to say: "...and calls on the Government to consider the holding of a Referendum on Article 41.3.2º of the Constitution." That is the most extraordinary phrase. The governing parties in the Seanad are calling on the Government to consider something. Senator Ferris said that his understanding of this was a call on the Government to hold a referendum. That is what the words do not say. The words say almost the opposite. The words call on the Government to think about whether to have a referendum or not to have a referendum. This is another delaying device. It seems amazing that the Government have not considered this yet.

The implication of this motion is that the Government have been in power for three years with a Labour Party who professed to be in favour of divorce but do nothing about it, and have not even considered it at this stage. I am looking forward to the Government's consideration but, having been in power for so long, they might have considered it at some stage. Perhaps when this motion is passed the Government will consider it. When our amendment is put to a vote at the end of this debate, I presume we will have the support of the Labour Party in calling on the Government not to consider something but to make a commitment to hold a referendum on Article 41.3.2º of the Constitution within the lifetime of the present Government. That is Labour Party policy as I understand it. I presume that we will have their support in the lobbies for that.

Mr. Ferris

Does the Senator want a commitment today?

Mr. Ross

I would like a commitment today. Do I have it?

Acting Chairman

Senator Ross without interruption.

Mr. O'Leary

Senator Ross is inviting interruption.

Acting Chairman

I agree but if Senator Ferris, with all his experience, falls for the trick I cannot do anything about that. Senator Ross without interruption.

Mr. Ross

I promise not to invite any interruptions.

Mr. O'Leary

The Senator's presence invites interruptions.

Mr. Ross

In 1967 we had an all-party committee on the Constitution to which Professor Dooge referred. This problem was considered by the 1967 all-party committee. Some of the same personnel who considered that are in this House today. That committee agreed that this prohibition must go. It is unreasonable to maintain that there has been no national debate on this problem nearly 20 years later. There has been a national debate and it was a recommendation at that time which was before its time. To ask for a national debate now when it was the unanimous decision of all the parties in these Houses at that time to delete this article, seems totally unrealistic and seems to be once again avoiding the issue.

We apparently need more time 20 years later, having reached a consensus at that time. Now the evidence of marital breakdown, it is agreed by all parties, is overwhelming. The statistics, it is also agreed, are difficult to get hold of and difficult to agree on, but I think it is agreed that there is a chronic problem and that fact emerged in the all-party report. There were, in 1982, about 2,400 applications for barring orders. In 1983 there were about 2,500. That only proves that certain numbers of marriages have broken down. In 1983 there were 15,000 applications for the deserted wife's allowance but that figure excludes people under 40 with no children and a means test is involved. So the figures are probably much higher than that, but they are very difficult to get hold of. That is agreed. What there is a consensus about is that there is a real problem here and it should be tackled.

Alone in Europe for some reason, apart from Malta, it should be noted that we are the only country who refuse to face up to the problem of divorce, and alone in the EC we are the only country which has no divorce at all. We should ask ourselves why is that? Why are we out of line with everybody else and why do we continually avoid this problem? It is worth noting that in eastern Europe as well, of course, there is divorce.

There are other reasons besides the reason of marital breakdown why this clause should be taken out of our Constitution. Apart from the Eighth Amendment to the Constitution, in 1983, this is the only purely denominational clause in our Constitution in that it discriminates and it dictates the laws and the doctrines of one Church against the doctrines of another. That is a very good reason why it should be taken out, apart from all the evidence of marital breakdown at all. The Presbyterian Church specifically provides for recognition of divorce and so it is a specific discrimination against the beliefs of Presbyterians, however small their numbers in this country. That is a reason which has not emerged in this debate, why divorce should not be prohibited by the Constitution. It should be noted here as well that all Churches regard the family as a fundamental group in the country. All Churches have that in common, that the family, as Senator Ferris rightly said is the fundamental group in which people live.

It should also be said, in terms of North-South relations, in terms of the constitutional crusade which was launched in this House four years ago, that divorce is a running sore and a striking difference between the way of life and the beliefs and the laws of North and South. It is absurd to talk of unity of hearts and minds or of even a Unionist acceptance of our way of life, if that is what we are looking for, if we do not have some sort of uniformity in our laws on these matters. Whether it is true or not is a different matter, but it is seen by the Unionists in Northern Ireland that this is a case of discrimination against a minority. Either we have to explain that it is not, which is very difficult to do, or we have to change this law if we are in some way to convince them that we are genuine about the pluralist society which so many of us espouse but we are so ineffective and weak in putting into effect.

I will sum up by saying I am very disappointed. I am not surprised. I had always been under the impression that the Government should lead not only the country in terms of legal frameworks but that the Government should lead public opinion. The principal excuse which we have heard from Senators Dooge and Ferris for not holding a referendum is that public opinion must be right, that we must have a clear majority of public opinion in our favour, because the damage it would do apparently if this was defeated would put social progress back ten years. What they are looking for is a guarantee of a result before you actually hold a contest. That is never, ever going to be the case. You are never going to be able to get a cast-iron guarantee of what the result of this would be and I have no reason to believe, and I would like to know why Senator Dooge and Senator Ferris have, that the result tomorrow would be any more in favour than the result today.

Although I certainly see trends as being in favour of a prohibition, there is no reason to believe that in terms of timing there would be a larger majority in favour tomorrow than there is today. This is another piece of evasion. This is the Government saying: "We do not really want to have it, but this is a very good excuse. We are basically in favour of it but we cannot hold it just yet because we are not sure of winning". You are never going to be sure of winning and you are not going to be any surer of winning tomorrow than you are today. It seems that this moment the omens are fairly propitious and it is as good a time as any to hold it. What I would like to see and why I put down this amendment is a rejection of these vague delaying tactics from the Government, but a commitment from the Government to hold a referendum within their present term of office, and that this Government should cease leading from behind on this issue.

Mr. B. Ryan

I formally second the amendment.

Minister of State at the Department of Justice (Mrs. Fennell)

I would like, first of all, to pay tribute to the members of the Joint Committee on Marriage Breakdown and to thank them for the work they have done on the committee and to pay tribute to Deputy Willie O'Brien for the job he did, which was not an easy one.

I am in full agreement with the motion in so far as it urges the widest possible debate on the recommendations contained in the Joint Committee's report. This is particularly necessary in relation to some of the recommendations made. I may say here that my Department are already considering proposals in relation to many of the matters dealt with in chapter 7 entitled "The Legal Remedies" and the views of the Joint Committee on these matters will of course be fully borne in mind.

As regards the holding of a referendum on the constitutional provision prohibiting the enactment of divorce legislation my attitude is that I would have no objection to the holding of a referendum at the appropriate time. I am not convinced that that time has yet come.

The Joint Committee received a very large number of submissions relating to the general question of divorce and the report sets out very fully the various arguments for and against. The report clearly illustrates the complexity of the question and the very important issues that arise both for the individual and the general community. I think the report is a very useful aid to the continuing discussion on the general question of whether or not it would be desirable to have some form of divorce having regard to all the wide-ranging implications. Senators will agree that this is probably the most important social question that has come up for debate in recent times. The question really is whether, and to what extent, we should now depart from the concept of marriage as a life long commitment between two people which has been for centuries a fundamental tenet of our law and society.

I do not propose, however, to say anything about the merits of whether or not we should have divorce. The arguments on both sides have been set out by the Joint Committee and it is essentially a matter on which people will undoubtedly form their attitudes in the light of their own consciences and their experience and view of life and, of course, it is the people and not the Government who will decide the issue.

There is one aspect, however, I would like to speak about. The committee believed that it would not be appropriate or feasible for them to recommend the details of any divorce legislation that might be provided in the event of a change in the Constitution. In my view the form that divorce legislation would take in the event of a change is a crucial question.

There would seem to me to be little point in asking the people of this country to say whether or not a referendum should be held on the consitutional ban unless they have some idea of what possibly would be put in its place if the referendum were to be carried.

I know, of course, that any legislation introduced now could, in the absence of constitutional provisions setting limits to it, be changed by subsequent legislation so that we could not say what the position would be in years to come. There is an argument, and it is a strong argument, to the effect that the experience in other countries plainly shows that it is a very difficult to contain the grant of divorce within narrow limits and that, once the principle was accepted in the law, there would be an inevitable trend towards wider and easier divorce leading ultimately perhaps to acceptance of divorce by consent or on demand.

To that extent it could be argued that the type of legislation that would immediately follow a change is not that relevant in the long term. These are important points that need to be brought out and borne in mind by people in relation to any referendum that might be held. I am aware, of course, that in our situation the provisions of the Constitution protecting the institution of marriage would be a restraining influence but the precise effect would, I imagine, depend on the specific constitutional amendment made following a referendum.

That being said, I think strongly that people have the right to know, if they are to be asked to vote in a referendum, what are the different alternatives for the immediate future if a change is to be made and to have an opportunity to indicate which they favour. It follows that, before a referendum could be held, there is a need for a more informed debate on the different alternatives that might be considered. I do not myself think that the discussion of the subject so far has in fact dealt adequately with this aspect.

My purpose today is not to set out the form which I, or the Government, think legislation should take if we must have divorce. Rather is it to refer to some general aspects which may help to focus minds on some of the important issues that arise on this side of the question.

I must say, at the outset, that there appears to be some confusion in the minds of some people on an important aspect and I might say, with respect, that the Joint Committee on Marriage Breakdown have not helped to dispel that confusion. The report states that it was the view both of the committee and of a great majority of those who made submissions to it that divorce rates that prevail elsewhere would not be desirable in this country and, later, that they, the committee, were also of the opinion that divorce on demand would not be appropriate or acceptable to the people.

The committee then go on to say that any divorce law should be based on the concept of irretrievable breakdown of the marriage, which is a common feature of modern divorce systems. It seems to me that these statements as they stand are mutually contradictory. Irretrievable breakdown of marriage is something that can, essentially, be brought about deliberately and unilaterally by one spouse who wishes to end the marriage so that if you were to have a system based simply on breakdown, in reality, what you would have would be divorce on demand, if one spouse objected, or on consent, if both spouses agreed. Experience elsewhere bears this out. This illustrates the need for more precise discussion.

The committee were probably right in their conclusion that divorce on demand would not be acceptable to the people. However, if that is accepted it argues for some restriction on the availability of divorce. What should these restrictions be? In what precise and limited situations should people become entitled to relieve themselves of the duties and responsibilities of marriage, an institution which it would remain the policy of the Constitution and the law to uphold and protect? There is a need for discussion of the different alternatives that might be adopted and on the extent of the restrictions that people generally would wish to see.

I would like to mention some aspects that would undoubtedly arise in any such discussion. One of the first questions is whether or not "fault", i.e. adultery, cruelty, desertion, should play a part in any legislation that might be necessary. In modern systems the concept of no fault divorce has become common. I mention this because there seems to be a view that fault should play no part in any legislation we might have, whereas I think that that question would be, to say the least, still open.

The argument usually made is that the necessity to prove fault can lead to allegations and counter allegations and can result in a painful and humiliating public inquisition on the marriage. I venture to say that the matter is not quite so simple. The fact that matrimonial cases are heard in our jurisdiction in camera obviates public, if not private, embarrassment of the parties. It has also been recognised that fault cannot be completely eliminated from divorce legislation, for example, questions of conduct inevitably arise in coming to decisions on maintenance, division of property, custody of children etc. To that extent fault remains.

Again, even with breakdown as the basic ground, if that were to mean something more than a mere formula of words, it should presumably impose an obligation on the court to satisfy itself that breakdown had in fact occurred and this could mean an inquisition into the marriage as painful as any under a fault system. Fault is a feature of our existing family legislation in maintenance, judicial separation, succession, occupation of the family home and barring orders, and I would not accept that we should get rid of it in these areas.

The situation in England is of interest. While, there, divorce is granted only on the basis of irretrievable breakdown of the marriage, in order to establish breakdown it is necessary to prove one of five facts, three of which are fault-based. In 1982, 70 per cent of decrees were granted on proof of fault-based facts. For the majority of divorces in England therefore, breakdown is not really the issue; it remains proof of fault. It is rare indeed for the court, on proof of the fault-based fact, to refuse a decree on the basis that the marriage has not in fact broken down because it has been recognised that it is the parties themselves — and essentially one of the parties — who determine whether the marriage has broken down and not the court. It is interesting that, in the major review of divorce legislation carried out in England last year, there was no change from fault. Of course, the vast majority of petitions in England are not contested.

If on the other hand, breakdown were to be considered as the basic ground, quite apart from the question of the extent of the inquiry which a court would have to conduct into the allegation, there would clearly be a need for something additional. If it were suggested, as it probably would be, that the fact of breakdown should only be accepted after a period of living apart, the question would arise as to what that period should be. Should it be three, five or seven years, which have been suggested or used in other jurisdictions, or a longer or shorter period?

I am not suggesting that any legislation introduced here should proceed one way rather than the other. I am merely suggesting that, in any consideration that may be given to the matter, we should not lightly assume that the question is settled.

Another aspect that would need careful consideration is the position on children. Senators will agree, as most people would and the committee felt, that every care would have to be taken to protect any children of the marriage who on any view are the innocent victims. But again, is it sufficient merely to say that? Is there not a need to develop precise proposals on how the welfare of the child could be protected in the best possible way and is there not a need for fuller discussion on this aspect also? At one extreme it could be argued that where there are infant children there should be no divorce. At the very least it would seem to be necessary to ensure that there would be no divorce if adequate arrangements had not been made for dependant children.

There are also aspects that are less obvious, for example, relating to cost. In many cases where married people part company, one or other forms a new relationship so that two households may become dependent on one individual and on one wage packet. The grant of a divorce creates an additional legal duty of maintenance towards the new spouse. This has obvious implications for wives and children of first marriages who, through no fault of their own, may find themselves in very reduced financial circumstances.

This could be particularly so in the case of women who had given up employment and had remained at home during the first marriage and who may find themselves, in later years, when the marriage breaks down, without the benefit of a developed career to sustain them. Women remaining at home would still seem to be the most common situation in this country so that this problem could be more acute here. What should our attitude be to possibilities such as this, and how do we envisage that the claims of the different dependants would be catered for in divorce legislation? In other countries this has led to increasing demands on welfare authorities.

Again, divorce legislation usually leads to demands for conciliation services and this again is a complicated matter on which the basic questions are not settled. To say simply that there should be conciliation does not advance the matter much. I presume that any conciliation arrangement should be optional since compulsion would seem to defeat the purpose. Should it be in or out of court and who should conduct it; lawyers, social workers, others? Senators will be aware that I, as Minister of State at the Department of Justice, have already set up a pilot scheme, a three year conciliation service in Dublin, hopefully to commence before the end of the year. I hope this will help to clarify how effective conciliation can be in these cases.

My main purpose in speaking is to suggest that we need further time for debate and that we need to be clearer in our minds on basic features of the legislation which it would be appropriate to recommend in the event that a referendum to change the Constitution were to succeed. Otherwise people would, to some extent, be voting in a vacuum. To that extent, I am not satisfied that the time is yet appropriate for the holding of a referendum.

Mr. Fitzsimons

This motion emphasises three aspects, first, that the House would welcome the report — which it does — secondly, it urges the widest possible debate with which everybody would agree, and finally it calls on the Government to consider the holding of a referendum on Article 41.3.2 of the Constitution. It is important to point out that it does not call on the Government to hold a referendum but to consider the holding of a referendum. I would feel that a consideration of this kind would be ongoing with any Government.

With regard to the order of reference, the purpose of the committee was to consider the protection of marriage and family life and to examine the problems which follow the breakdown of marriage. It is worthwhile pointing out that it did not refer to divorce. In some places, during the life of the committee, this committee was referred to as the divorce committee. Divorce does come up for consideration; 20 pages are devoted to the subject, pages 71 to 91, inclusive.

The media and the newspapers are inclined to label those for and against divorce in various ways. Despite these labels it should be pointed out that those who campaign for divorce and those who are in a situation where they want divorce are really taking a conservative stance because, by and large, they are acknowledging the institution of marriage. They are striving to get a legal termination of their marriage in order to marry again. A radical approach would be that they would want to abolish the institution of marriage altogether. Of course this does not arise and very few people want to do that. It is important to point out that. When the time comes for me to make my decision about divorce I would have to consider, on the one hand, the sacredness of marriage, the sanctity of marriage, the history of marriage in this country and the whole ethos regarding marriage. On the other hand, I would have to consider, very sympathetically, the number of people who are involved in this sad and tragic situation. The report tells us it may be as many as 36,000, which even if it is the lowest in Europe, is a considerable number.

The deadline for the report was 7 July 1984. This was extended on four occasions; on 28 June it was extended to 1 December 1984, subsequently to the 19 February 1985, then to 21 March 1985 and finally to 2 April 1985. Personally, I welcomed those extensions because it seemed that the committee were doing their job in a very thorough manner. I congratulate the committee on a job which was very well done. We are told in the report that there were 500 written submissions and oral evidence from 24 different groups. Those of us who are members of the different committees realise the hard work and the time-consuming exercise it is. In effect, the result of this report is that we have a handbook which I am sure will be used for many years by those involved in the situation, whether as experts or those who are in a marriage breakdown situation.

I agree with Senator Dooge that perhaps the report could be more readable because it does cover the legal situation in a very thorough and very exhaustive way. Perhaps it would be an advantage, where a large report like this is concerned, to have a prêcis or a synopsis which would cover the important points.

Some weeks ago we had a situation in this House when Members tried to raise the matter for discussion. I am not overanxious to get involved in this area because it is not one on which I have an great competence. But even allowing for the time which has gone since then I feel more time would be needed for an indepth study which the subject really demands. As Senators have pointed out previously, the situation is never a black and white one except perhaps to those who are personally involved, for whom it is always black and white. To those who are not involved it can be a 50-50 situation or a 49-51 situation. It is difficult to come to a conclusion in that kind of set-up. I believe the matter will come up again in a much wider context and so my contribution will be brief.

Like Senator Dooge, I look forward to hearing the contributions of the members of the committee. I will confine my contribution to some aspects of the report. Before I do so, I would like to say that I believe that any analysis of marriage must be in the form of a dichotomy of husband and wife. Sociologists tell us that there is overwhelming evidence of the beneficial effects of marriage to men. Compared to single men, married men are more successful in their careers; they have higher incomes; they have a higher status occupation; their mental and physical health is significantly better and they live longer and happier lives. It is very well established that marriage itself is responsible for this situation rather than that happier and more successful men marry.

On the other hand, women's marriages present a completely different picture. There are surveys to show that more wives than husbands are unhappy in their marriage situations. Wives suffer much more from stress, anxiety and depression than their husbands. The physical health of single women is much better than married women. Single men compare unfavourably with unmarried women. There are few differences between married men and unmarried women, but single women are better off as far as pyschological distress symptoms are concerned, suggesting that women start out with an initial advantage which marriage reverses.

In that situation we should have a special consideration for the position of women. I do not wish to appear to be patronising and I do not want to suggest that I can presume to interpret the views of women but, looking at it objectively, I think special consideration should be given to the position of women. I am sure, with all men, I pay a special tribute to women and to those women in our lives who have been such a great success.

The change in the rate of marital breakdown reflects the change in norms and values. Some people claim that this is because marriage is increasingly valued, that people want to get more out of married life. They look, and perhaps rightly so, for a considerable return in many ways. Some sociologists claim that a rise in divorce rates may indicate a higher rather than a lower standard of marriage in society, from the expectation of people.

We know that the industrial society reduces the specialist functions of families and the economic bond is considerably weakened when the family is no longer a unit of production. I would like to quote a short extract from "Sociology Themes and Perspectives" by M. Haralambos. On page 363:

N. Dennis suggests that the specialization of function which characterizes the modern family will lead to increased marital breakdown....

then it argues that:

In so far as companionship, a close, durable, intimate and unique relationship with one member of the opposite sex becomes the prime necessity in marriage, failure in this respect becomes sufficient to lead to its abandonment.

To put is simply, when love goes there is nothing much left to hold the couple together. This has been referred to by previous speakers. Even regarding the notion of old fashioned love we might have a question mark in some ways because, as has already been mentioned in this House, over 100 years ago marriages took place in this country at a very early age, in the early 'teens. Many marriages were contracted before the couple even met. There did not seem to be the great problem that might be expected from young marriages. Perhaps love and sacrifice are losing out or not getting the attention they deserve. At the same time I am not saying that those qualities are missing in the marriages which have broken down. But we do know that in European countries the decreased marriage rate and the increase in marital breakdown has been as a consequence of heavy industrialisation which we did not have in this country. Perhaps that is the reason for the change as much as the religious or the moral one, with which people are inclined to associate this situation. Here it is a rather happy situation when compared with other European countries.

The report states that the number of people who marry has not increased at the same rate as the number of persons of marriageable age has increased. The number of marriages taking place has decreased. This gives cause for concern. The report states, on page 2:

The committee acknowledged that the present law does not provide adequate protection for those persons whose marriages do not remain viable and that this, in itself, is a threat to marriage.

This is something with which the Government should be immediately concerned.

The report emphasises the importance of education and preparation for marriage. This is something with which we would also agree. I do not think that it is sufficient to prepare for marriage because I feel that education everywhere should be a preparation for life of which for most people marriage would be a part. It is the duty of the State to make that provision and to see that that facility is provided. Relationships should be an essential part of education in schools. This is important. From that point of view, sexes should not be segregated in schools. Mixed schools are the best media for the training of young people.

There should be an obligation on the State to provide easily accessible and effective counselling services for married persons. As Senator Ferris said, we owe a great tribute to religious groups and individuals who have done trojan work in this area. The marriage of young people presents the most difficulties. The committee are of the opinion that the minimum age for marriages should be 18 years. This is commonsense. We all realise that people develop in different ways.

In section 4 which deals with marriage breakdown it is stated that spouses provide for further growth in their respective personalities as well as the requirements for the rearing of children. This is something with which nobody could take issue. Spouses should provide for further growth; they should have this ability to complement each other.

Under environmental factors on page 24, it is stated:

The development of birth regulation is increasingly playing a large and important part in the fabric of family life.

This is an area for discussion which could be developed to quite an extent. There is no section in the report which deals specifically with sex. This is most important. To deal with marital breakdown and with marriage without dealing in some comprehensive way with sex is really to try to plan a motor car without the motor wheel.

In this specific area the Family Planning Bill will perhaps help in the area of the family. But there is also the other side to it, that outside the family situation it may do the opposite. I would not be convinced that, taking the situation as a whole, it would be helpful rather than the opposite. I would be somewhat apprehensive about that. In this area the whole approach to marriage could be discussed because marriage at the very lowest consideration seems to be a licence to enjoy sex. I would like to see a development which would consider this from the point of view of the Church, the majority Church in this country, because the teaching of the Church has been that sex outside marriage is always wrong.

Debate adjourned.

Sitting suspended at 1 p.m. and resumed at 2 p.m.

Seanad Éireann debate - Thursday, 27 Jun 1985