It has been a pleasure and a privilege to listen to Senator Bulbulia's thoughtful and well-considered contribution to this debate. I am proud that the first member of the joint committee to have contributed to this debate should have made a contribution of such rationality, good sense and quality as Senator Bulbulia's contribution to this debate. I would also join with her in mentioning the people who helped out in the committee, in particular our chairman, Deputy Willie O'Brien, who endured a great deal and showed a great deal of patience. He put up with a lot from many of us. It was a somewhat thankless task for him and I had every sympathy for him when at the end of the deliberations of the committee he indicated that the last thing he ever wanted to do again was to be a chairman of a joint committee. I would also like to pay tribute to our Clerk, Rory McCabe, and also to our legal adviser, Gerry Durkan who put in way above the type of contribution which might have been expected from someone who is simply appointed as a legal consultant. He worked extremely hard at the task that was put before him and with considerable commitment and enthusiasm and the committee owe a great deal to him.
At the start of my own contribution I wish to say that I will be supporting the amendment put down by Senators Ross and Ryan calling on the Government to hold a referendum within the lifetime of the present Government. At a later stage in my speech I will go on to some of the reasons why I am supporting this amendment at this time. Basically I am supporting it because I feel that the referendum and the whole question of marriage and family law is an urgent matter. The urgency of this matter was indeed reflected in the fact that the committee were given a short period of time for their discussions. Very considerable pressure was put on them to come to a conclusion and it seems totally ridiculous having put so much pressure on the committee for everyone then to sit back and say what we need is time for an enormously long debate and so on. I was very disturbed indeed to hear a statement in the last few days by the Minister for Foreign Affairs, Deputy Peter Barry, that the Cabinet has not even discussed the matter of a referendum and that he did not know when they would be discussing it. I very much fear that the whole question not only of divorce but of all the other recommendations of the committee which are positive supports of marriage and the family may very well be long-fingered because the Government think it would be awkward or difficult or would put them in a position of conflict to put forward a referendum. Therefore, I am supporting the amendment proposed by Senators Ross and Ryan.
Because I am supporting this amendment and because the referendum issue is probably the one that most attracts public attention in this report, I should like to deal first with the question of the constitutional prohibition on the enactment of any law on divorce in this country. It is no secret that I was one of the members of the committee who would have preferred the committee to recommend that it would be desirable to introduce divorce law. Like Senator Dooge in his original contribution to the debate when he moved the motion, I find it rather strange that the constitutional committee of 1967 could unanimously recommend a change in this position. Here we are some 18 years later pussyfooting about and saying: "We might recommend a referendum but we would not go so far as to recommend changing the law". This is perhaps a comment on the lack of legislative honesty and legislative leadership in this country — that we are afraid to come out and make a decision one way or the other.
It is no secret that that was the view I held during the course of the committee debates and which I put forward in my contributions. It is a view I continue to hold, and will continue to hold as a legislator, as a practitioner in the family law area and as a citizen. I hold it in particular as a citizen who belongs to a minority religion, one who was born and brought up in Northern Ireland and who has had over my lifetime a commitment to the unity of this country which would include a system of law which left open various rights, remedies and openings to all the different people in the thirty-two counties.
I will now go on in some detail to deal with the arguments either in favour of or against the introduction of divorce and which are dealt with in chapter 7 of the report. I am sure many Senators have had the opportunity to read the report. It has been available for some time but only in very recent days have we had the publication of the minutes of evidence of the various bodies which made oral submissions to the committee. For those of us on the committee — and certainly I made a great effort to attend the vast majority of these oral submissions — these were of very considerable assistance and were very enlightening. We specifically chose to hear in oral evidence people who we considered to be representative groups, whether on one side of the argument or on the other, but in the main representative groups who were working in the area and who knew what they were talking about. They were people who were involved in marriage counselling, family law solicitors, people from the Incorporated Law Society who work in family law, social workers, psychiatrists, psychologists who work with the family and all sorts of people who genuinely had something concrete to say which was based on their own direct experience and not from theorising which was drawn from various books on one side or the other.
It was very interesting to find the kind of opinions that were put forward in this evidence. I suggest that all Senators and also Members of the other House should study the minutes of evidence and the submissions in addition to the actual report itself. Apart also from the minutes of evidence there were, as Senator Bulbulia has said, a great many personal submissions. These, which came in large part from people who had gone through what one might describe as the murder machine of marriage breakdown and the court system as it now is, were documents which could not but move to compassion the members of the committee. One would need to have been very hardened to read through these documents without realising the kind of suffering that is being experienced and the kind of suffering which lacks a definitive remedy.
This lies behind the first argument in favour of divorce which is put in chapter 7 on page 75 of the report which is that the prohibition on divorce is an injustice to those persons whose marriages have irretrievably broken down and who have become involved or wish to become involved in other relationships, in particular, to those persons whose marriages have irretrievably broken down. It came out again and again in the submissions to the committee that a large number of people are living in a limbo of broken marriage. They cannot put an end to the marriage that is dead and cannot start clean on a second relationship. Many of them are starting on second relationships and all the practical evidence in this area and all practical evidence of social workers and so on show that there are a very large number of these second relationships.
Some of them are what one might call "made respectable" by the church by the fact that they are remarriages after Catholic nullity. But they are nonetheless legally bigamous and carry all sorts of problems with regard to succession law, to even such things as mortgages, insurance, tax and so on. For instance, the children of these marriages, however carefully one may arrange one's separation agreement so as to provide for succession Act rights, are not members of the ordinary family for tax purposes when they inherit. They are therefore penalised in this way. There are all sorts of practical problems like this which came up in the submissions to the committee.
Very often it might be asked, "what do you mean by irretrievable breakdown?" This is a practical view. People whose marriages have irretrievably broken down know perfectly well when that is so. So do those who have to deal with them on a practical level. I draw attention to what the then Church of Ireland Bishop of Limerick and Killaloe, now Bishop of Meath and Kildare, Dr. Emphy, said in his evidence to the committee when he was asked by Deputy Woods about irretrievable breakdown. He said:
Those involved in a pastoral ministry can see quite clearly when a marriage is dead, when there is no further communication of almost any sort, when people are living two separate lives, when they simply cannot bear the sight of one another. This is in a household and not in theory. It becomes perfectly obvious that there is nothing left in that marriage to retrieve. There is not even respect for each other, and where there is no respect there is no hope of the marriage ever coming alive again. The whole idea of annulment deals with some vague factor that is said to have existed prior to the marriage, but we would say that in fact marriages break down when everything that has gone before seems to say that it was a "valid marriage". People will agree that marriages die. A living relationship can die as well as grow.
I suggest that this is the more developed Christian view of marriage at present — and I asked this particularly of the theological advisers from the Roman Catholic Church who gave evidence to the committee, as well as of members of the various Protestant Churches. Their view of marriage is no longer that of a simple contract but of a covenant of a living and growing relationship which will develop throughout life. Once we begin to put forward the idea of a living and growing relationship we must accept that on some occasions a growing relationship can die. My feeling is that at present we are surrounded by dead marriages but we are not prepared to offer a decent burial to these marriages. We are keeping them alive in a kind of mummified situation, perhaps, where they have no reality and where they are not either a social or religious gain, or a legal or any other sort of gain. They do not protect the family as it stands.
The other difficulties of second relationships are set out in the report, that people in second relationships cannot achieve any recognition of their new relationship or any adequate legal definition of their status. One gets anomalies like the fact that remarriages after unrecognised divorces abroad are not theoretically legally recognisable but, nevertheless, if one is dealing with the Revenue Commissioners one may find that one may be treated as a married person. If one is looking for a local authority grant to extend one's house one will find that the income of the so-called spouse is taken into account. There are numerous examples of the whole hypocrisy of our society on this subject where non-legal second relationships are at a disadvantage both ways in the sense that where it is a disadvantage for them very often they are treated as a marriage and where it is also a disadvantage for them they are treated as not a marriage. It is a very invidious situation for such persons. We would be making a grave error if we thought there were just a few of these. There are a very large number of them.
The Law Centre solicitors, for instance, referred to this in their oral evidence and in their submission. Miss Paula Scully, who is a very experienced solicitor in family law, said:
We find people changing their names by deed poll to their boyfriends' names. They are coming in wanting to know why their children are regarded as illegitimate in the law. They are losing respect for the law. These are people who are basically law abiding citizens and who have very strong religious views, but who find they have got themselves into second relationships. They feel that they want to marry. They want the commitment of marriage and they do not have that right at the moment. It is from the viewpoint of practitioners of family law that we have seen the problems that these second relationships cause — the fact that there is no legal protection for them and particularly for the children who are left and the women are left in a most vulnerable position. We feel that if divorce was to be brought in they would have the option of remarriage which would in fact help the parties to have a greater commitment to each other and it would mean that the law would apply to and protect these relationships as well.
The second argument which is taken up in the report is that all the minority Churches and religions, with exception of the Church of the Latter Day Saints, that is what is normally known as the Mormons, do not favour the retention of the blanket prohibition on divorce in the Constitution. This is very important because in a sense this was one of the things that came up most in the discussion on divorce in the debate in the New Ireland Forum report, in particular where the Catholic bishops gave evidence to the Forum and where Bishop Cassidy was questioned again and again about this. He said, basically, that if there was Irish unity there would be no diminution of the human rights or whatever of the people in the North. Of course, this first of all begs the question of what does Bishop Cassidy regard as being a human right. It was more or less assumed that it would be accepted in the case of a united Ireland that a divorce law would have to be allowed for and yet it is not accepted in the situation of the present State. I suggest that this is an untenable position. Either the idea of a pluralist society, the idea of a society which recognises the conscience of all different religious groups, is a real one or it is not. If it is a real one — and Senator Bulbulia has paid eloquent tribute to the necessity for it — then it belongs in this State and not just in some mythical all-Ireland State which we all hope will eventually come but which certainly is not coming the day after tomorrow.
All the different minority Churches specifically drew attention to this. Even while saying that they did not necessarily think that divorce was desirable or a good thing, they did feel that it was a remedy that should be available to the citizen through the State. In particular the Presbyterian and Methodist Churches, who do recognise limited rights of divorce within their own disciplines, are to a real extent being discriminated against by a system of law which does not allow their adherents to practise that position in this State.
It was quite clear, as stated in the report, that all minority religions felt this: The Society of Friends, all those that gave evidence with the exception of the Church of the Latter Day Saints — and they, after all, are a somewhat special case because were it not for the law of the United States my understanding is that their religious belief is that polygamy is the correct solution to these matters and, therefore, it is simply that they are forbidden polygamy by the State law of the United States. Their standpoint is a rather specialised one and is not representative of the normal position of the minority religions. I would point out that while saying this the question of whether we have divorce or whether we do not have divorce must not be reduced to a question of "It is the minority religions who want divorce and the Catholic Church which is against it. We are a country which is 95 or 97 per cent Catholic and, therefore, we do not have to have divorce". It is quite clear to anyone who has talked to people in this situation, has dealt with the practical problems, has been to meetings of groups like the Divorce Action Group, that the vast majority of people who are seeking the remedy of divorce are not members of the minority religions, they are members of the Roman Catholic Church who have been brought up that way. Many of them are devout, committed Christians but they cannot bring themselves to feel that the law of the State should in this case reflect the law of their Church. If I might say on a personal basis, Senator Bulbulia and Senator Robinson, who are sitting here listening to me, are excellent examples of this situation — people who are by belief, by upbringing and by commitment members of the Roman Catholic Church, people who are excellent Christians and who, indeed, show forth by their fruits and their deeds their commitment but who at the same time are not prepared to accept that the fact that the Church opposes divorce should be reflected in the law of the State. They are but examples of a very large number of people, and a growing number of people.
Our Legislature tends perhaps to reflect, rather to over-reflect, a conservative point of view on this issue partly because we tend to be an older age group, partly because a large number of us come from rural rather than urban areas and because this problem is more acute in urban areas than it is in rural areas. The divide in this is very much more a divide of age, a divide of opinion, a divide perhaps rural people and urban people, but much more that than a divide between Catholics and Protestants. Any debate on the subject of divorce in the General Synod of the Church of Ireland will show up exactly the same divisions as in the country at large. There are many people within the Church of Ireland who are deeply opposed to divorce and deeply opposed to divorce legislation. There are other people who feel that it should be provided. The official view of the Church is that the State should provide this facility. One will find the same divisions within the Protestant Churches as one will find within the Roman Catholic Church. I would hate to see this becoming an argument where the minority Churches are, as it were, used as a lever saying this is a matter for the minority Churches only. That is not so and the vast majority of cases dealt with before the courts of marriage breakdown are cases that have nothing to do with members of the minority Churches.
The third argument put forward was that the constitutional ban on divorce and the absence of divorce legislation since the foundation of the State have not prevented marital breakdown from occurring and that in the past decade the level of marital breakdown had increased. I feel very strongly that we have created a kind of shibboleth of Article 41 being and setting out to be a protection for the family whereas I would suggest that to a large extent it has been merely a pious aspiration. First, we have done very little of a practical nature — and, indeed, the report of the committee and the various practical recommendations which I will be dealing with later brings this out — to protect the family, other than the negative prohibition of divorce.
While, of course, I share the concern of the committee and of all the speakers that we have very little in the way of reliable statistics to show this up, and the concern that our next census should endeavour to find out as much as possible about this area, in so far as one can judge these matters it appears that the statistics on marital breakdown in the Republic are, by and large, comparable with the divorce statistics in Northern Ireland which is a society comparable of ours. There really is not much point in comparing Irish society with the society of Western California because it is different in so many ways. It makes much more sense to compare marriage in the Republic with marriage in Northern Ireland which is a roughly comparable society and which, with a divorce facility, seems to have much the same level of marriage breakdown as we have. This, if anything, is proof that the constitutional prohibition has not worked to prevent marriage breakdown. In particular in the past ten to 15 years this has been very noticeable.
Mr. Justice Kenny of the Supreme Court, who originally dealt with virtually all the family law cases in the High Court, stated in a lecture that when he started to deal with these cases there was a trickle of cases and later it became a river of cases and, by the time he gave up dealing with it in the High Court and moved on to the Supreme Court, it had become a torrent. If it was a torrent at that stage, it is many times a torrent now. Even within the lifetime of the committee, the number of cases dealt with multiplied considerably.
At the beginning of the deliberations of the committee, all the family law cases in the Dublin circuit area, for instance, were dealt with on one day a week, on a Monday but by the time the committee had finished deliberating, three days a week, Monday, Wednesday and Thursday, were fully taking up a Circuit Court judge's time dealing with family law cases alone. That has given rise to a system, to which I will be referring later, where far too many cases are listed before the one judge in one day. There can be up to 50 or 60 cases listed on occasions before one judge in one day. If anyone imagines that the whole future of a family can be dealt with in the ten minutes or so that would be available in that case, they have a very strange idea of what legal remedies should be. The very level of marriage breakdown shows, first, that the constitutional prohibition does not necessarily protect marriage and, secondly, that we have not made any effort to fulfil the pious aspirations in family terms in the Constitution, that we have not really tried to protect marriage and the family. It will, of course, be argued that perhaps if we did try a bit harder we might prevent marriage breakdown and, certainly, that if we tried a bit harder we would reduce it, but I do not think, with society as it is at present, that we could do away with marriage breakdown and with the necessity to provide a remedy for it.
The next argument given is that the breakdown of a marriage is due to the collapse of the relationship between the parties and that divorce does not cause that collapse, but merely affords a facility to give legal recognition to the fact that a marriage has ended. This was very much brought out by the evidence of Dr. Jack Dominian who is, as Senator Bulbulia has said, an expert in this field and not only an expert in this field but also a committed member of the Roman Catholic Church. He felt that there was no way that divorce created marriage breakdown but that it reflected the marriage breakdown which occurred in society and that, therefore, the provision of a divorce facility gives legal recognition to a fact that already exists.
This is allied to the later argument that to deny the right to remarry to a battered wife or husband has no social advantage to the State and is, in fact, detrimental to society in general and lacking in compassion. One might ask what good is served by continuing the suffering caused by tying together people who are involved in a dead marriage. The answer we are given is that it will discourage the others from allowing their marriages to break down. This is like saying that we should shoot one of them to encourage the others to behave themselves. But really, we must ask ourselves what actual good is served by this — and it is not a case of hard cases making bad law, of a few cases being involved. A large number of people are involved.
I do not feel competent to comment on the following argument about the absolute prohibition on the introduction of divorce legislation imposing on Catholics regulations which are more rigid than those required by the law of the Church. I have had this point put to me and I realise that the canon law is as is stated in the report, but I do not feel that I am really the right person to deal with this. More important still is the argument with regard to children — that it is the factual breakdown of a marriage and not the availability of divorce that has an adverse effect on children. This is something that I would put forward very strongly, because one of the counter arguments against divorce is that children are damaged by divorce. Of course, children are damaged by divorce. Children are damaged by the breakdown of their parents' marriage; children are damaged by the break-up of their family. We see this all around us every day. Really, to a child does it make any difference whether you call this breakdown a separation agreement, an action for custody under the Guardianship of Infants Act, a decree of nullity, or a divorce? It is the fact that matters to the child.
What we should be doing is trying to have legislation which protects children, to have court structures which protect children, to have social back-up marriage counselling, all sorts of help to protect children, not to take up a false position by saying that if we introduce divorce we will damage children. It is perfectly all right to have an extended and a greatly extended law of nullity because, of course, that is religiously all right. In this case I would try to put myself in the position of, say, a child of ten, 12 or 14 years whose parents' marriage has broken up. This is going to be a very traumatic situation for that child. It is going to be a difficult, sad, damaging situation, but if I were the parent of that child I would find it very difficult to say: "Your father and I can no longer live in amity and our marriage is going to break up. We are going to separate. Perhaps we are going to get a divorce." I would, however, find it twice as difficult to say to that child: "Your father and I were never married at all. Our marriage is void; it is a nullity. The courts have found that one or other of us, either I or your father, was mentally incapable of forming and sustaining a marriage relationship. Everything that has gone before, your existence, your entire lifetime, has been a falsity and a deceit. You are now illegitimate and the whole thing was a mistake."
If that is not damaging to children, what is? How can anyone say that the provision of divorce law is more damaging than is, what is widely advocated by groups that oppose divorce, the extension of nullity so as to provide a kind of divorce, Irish style, that would be acceptable to the majority religion? This is an issue which makes me very angry on behalf of children as well as on behalf of couples involved in marriage breakdown. It is total hyprocisy to be prepared to say that nullity is fine and that it should be extended to such an extent that it would solve the problem, and yet say that divorce would so terribly damage children.
The financial argument is factual and of course divorce will cause financial hardship. There is financial hardship attached to separation agreements, however amicable they may be. Financial hardship attaches to divorce a mensa et thoro, to nullity and to all sorts of remedies which we already have. For a family, the basic difficulty generally is that there is one family home. They may have had one or two incomes, but the one family home is often the crux of the matter. The difficulty is to provide a reasonable place in which two separated people may live, one of whom, perhaps, has the children. The offer of a barring order which puts one person out of the family home is no solution because a person put out often has not the financial wherewithal to house himself or herself and the financial situation is made worse. There is no doubt that there will be financial hardship but it will not be all that different from the financial hardship that already exists.
The fact that the parties will remarry will not add to this either. Many are already illegally living with other people and these illegal second relationships are recognised by the courts when maintenance is being assessed. If there are children of the second relationship it is obvious that some provision should be made for them too. I cannot see that the introduction of divorce will necessarily make a crucial difference to the financial hardship. I agree with the recommendation of the committee which was highlighted here by Senator Bulbulia that it is up to the State to make good the shortfall if there is a default in a maintenance payment rather than leaving it to the dependent spouse to pursue the maintenance debtor through the courts, very often with failure, and to reach the position where the spouse hope that maintenance will not be paid so that the wife can claim the deserted wife's allowance in order that she will have money coming in regularly, if not in very great quantities. Maintenance orders are not necessarily fulfilled and the present remedies of attachment and committal, that is eventually to put the maintenance debtor into jail, are not at all helpful. In the end, if the husband is in jail, where does he get the wherewithal to pay maintenance? Financial hardship will not be greatly altered by the introduction of divorce.
Many of the arguments against divorce are from sociology and from what might happen. It is suggested that the introduction of a divorce jurisdiction would open the floodgates and the rate of divorces and the incidence of marriage breakdown would be greatly increased. This is supported by the experience of other states where divorce has been introduced. Not all states necessarily reflect this pattern. Italy and Portugal perhaps are countries that might be somewhat comparable with Ireland where the figures do not necessarily bear out this argument. It is interesting that in the minutes of evidence, Dr. Jack Dominian in particular denied this as being a natural progression and stated in his evidence, at page 40 in the minutes of evidence:
We are starting with the key question. I am very conscious, when you ask me this question, about the relationship of law and marital breakdown and the relationship of religion and marital breakdown, which are the two factors, I will try to be as honest as I can. I think the law, as I understand it, can do very little to prevent marital breakdown in our society today. In so far as the law and religion were influential factors which really influenced people's lives in the past, yes, it could do something about it. But we are talking about middle ages. At present I do not think I have ever seen a couple whose behaviour was in the least influenced by what the law said. As to the other question, that if you permit divorce in a country are are opening the floodgates, there is no evidence that I can lay my hands on that people who divorce are in the least concerned primarily with the law. They are concerned primarily with their relationship. When their relationship ceases to function then they start thinking about the law and what the law can do to facilitate them. In other words, I have no evidence to suggest that the law acts in a preventitive way in Britain or, from what I read, anywhere else in the world.
He then went on to say:
I do not believe that the absence of divorce law in any way stops marriage breaking down.
When we turn to the evidence of the Church of Ireland submission to the Committee on Marriage Breakdown, there was quite a long discussion between Deputy Flynn and Mr. Michael Davey, a solicitor from Belfast who practises largely in the family law area in Belfast. Deputy Flynn asked question No. 174, on page 137:
Would you agree that in other jurisdictions where divorce legislation has been introduced over the years, it inevitably led to "no cause" divorce, irrespective of how it started off, and that it did lead in those jurisdictions to greater breakdown and subsequent divorces?
Mr. Davey.—I would not agree. That is not a statement which is provable. In western society there is an increasing number of marriage breakdowns for a variety of causes. More and more marriages are breaking down. More and more are breaking down in this jurisdiction where there is no divorce law at all. I gather that the statistics for breakdowns in the Republic are difficult to come by but there are a number of pointers such as the number of people drawing single parent allowance. There are a whole series of indications that even in a society where there is no divorce, for any reason, more and more marriages are breaking down. It seems to be one of the diseases of western society. We will have that whether or not there is divorce. Obviously, if divorce is available, people will use it. There is no question about that. It may even be that in a very small number of cases divorces will take place, which had there been no divorce might not have taken place. It is not a valid statement to say that divorce is a cause of marital breakdowns. Marriages are breaking down and that is the fact. They are breaking down in every kind of society, regardless of the divorce laws largely due to peoples' expectations and in the whole change in the way that people see their position in society, their purpose in life, what they are entitled to, and what they expect.
At another stage Deputy Flynn asked Mr. Davey:
What you are saying is that if divorce legislation is introduced here, it would inevitably lead to widened circumstances being applied?
Mr. Davey.—No, I did not say that. If the problem expands then the law will expand with it.
He expands this by saying that any law which is introduced to meet an expanding problem will inevitably expand with the problem. One can say that grounds for divorce have tended to get wider in all societies in which divorce laws have been introduced, because if the problem is expanding the law will always expand to try to meet it. The same would happen, for instance, if the grounds for nullity were widened in this jurisdiction — the laws would become wider as the problem expanded. It is the classical response of the law to such situations. The laws deal with problems thrown up by society, usually a bit slowly. They take some time to catch up with what society is doing, but that is where the laws come from — they arise from the problems of society. This is an explanation dealt with very fully in William Duncan's book, The Case for Divorce in Ireland. It deals with the changes in divorce law and changes in society. To say that divorce law begets changes in society begs the question. I suggest it is an unprovable statement.
Argument B suggests that the introduction of divorce would change the nature and perception of marriage fundamentally by making it a temporary as opposed to a permanent union of husband and wife. A number of people giving oral evidence who had had experience in Northern Ireland were asked specifically did they think that couples in Northern Ireland approach marriage in a less serious, a less committed way than couples here. Their answers, invariably, were that couples in Northern Ireland viewed marriage in virtually precisely the same way as couples here. It was suggested that the provision of a reasonable divorce law did not create a position in which everyone went into marriage saying it was just a temporary thing. I am afraid we must admit that in any society, regardless of which law we are talking about, there will be a few people who will enter marriage in a very lighthearted, childish, immature way, and their marriages may break up very quickly. They may form second relationships, even third, fourth or fifth relationships, but that can very well happen regardless of what the law is. I do not accept that if a reasonable limited law of divorce was enacted everyone getting married would turn round and say: "Well, this is temporary. If things get bad I can run home to mother and get a divorce".
All this is related to Argument D, that people having difficulties in their marriages would work less hard at achieving solutions to their difficulties. In my experience people accept that there have been marriage breakdowns only as a last resort, after a great deal of trial and suffering and effort. The number of people who come to me and say that they want to try marriage counselling and conciliation, who want to try to mend their marriages comprises a very large proportion of those having difficulties.
The public view that if we had a divorce law everyone would cease to work at the marriage, would cease to try to solve marital difficulties is very insulting to ordinary society here. It is insulting to ordinary people to say to them that if they were allowed a way out they would cease to take marriage seriously, that they would seek divorces at the drop of a hat — if your egg is boiled too hard you look for a divorce. We should not accept that this is the sort of society we have. If anybody suggests this is the sort of society we have, how have we allowed this to grow? We who have been surrounded by this marvellous constitutional protection of marriage, we who have had a legal system which protects marriage by not having a divorce law, how is it that we now can say that if we introduce a divorce law the whole thing would fall apart? I cannot follow that kind of argument.
It is suggested as well that the introduction of divorce would reduce the protection given to the institution of marriage under Article 41. I do not believe that the provisions of that article worked to protect the family, either positively or negatively, and I do not think the Legislature have done a great deal even to try to do it. Any changes in family law have been in response to pressure groups who represented suffering people. The introduction of the Maintenance Act, the Family Home Protection Act, the Family Law Act and the Family Law (Protection of Spouses and Infants) Act has been in response to pressures thrown up by marriage breakdowns and not to the high flown clauses of Article 41. Let us not deceive ourselves about that.
I have dealt with problems in relation to children, but a special point is made in the report that if one of the parents remarries it is argued that the situation is exacerbated, that the children have to cope with the problem of forming new relationships with step parents and step brothers and step sisters. It is said that sometimes this can result in conflicts of loyalty and emotional tension between children and new and former parents. That is happening now because we have all these second relationships. If Senators had listened to applications for access in family law cases they would realise that much of what the courts are asked to decide turns on whether the children who have been given access to their fathers should also meet their father's present girlfriend whom he is living with. For quite some time the courts turned their face against it and said children should not have such access, that the children should not be asked to meet someone who is engaged in an adulterous relationship. But if we look at some of the judgments we will realise that the situation has changed radically and that normally the courts now say that the situation must be accepted as it is, that the children will get to know that their father or mother are living with somebody else, that they have half brothers and half sisters. The children will have to cope with this situation.
Therefore, there is no point in creating a position in which access should be in the absence of the person with whom the spouse is living. That may be putting it in a complicated way but it is a realistic way to approach things. Therefore, I do not see that because a formal legal marriage does not exist between the father and his girlfriend or the mother and her boyfriend it will alter the situation greatly from the point of view of the child. Undoubtedly there will be a conflict of loyalty and emotional tension but they are there already.
I have dealt with the financial argument. I will move on to another argument, that the introduction of divorce would be contrary to the religious views of the vast majority of the people residing in the Republic of Ireland and to the teachings of the Church of which the overwhelming majority of the population of the Republic of Ireland are members. I suggest this is the real argument and that all the other social arguments are rationalisations of this argument. The arguments of most of the groups opposed to divorce are careful rationalisations of a position which, if you look into it, is this religious argument that because the Roman Catholic Church is opposed to divorce Ireland should not have a divorce law. I do not like to put it as baldly as that but that is the way I have to look at it.
I have dealt with the injustice of the situation and its illogicality, bearing in mind the sort of evidence given and the constitutional crusade which the Taoiseach introduced with such fanfare some time ago, the sort of Republican commitment given by Fianna Fáil, whose patron saint is Wolfe Tone and whose whole philosophy would have found this kind of attitude anathema. We must face up to reality. One person's interested party is another person's pressure group, and what you call a pressure group, depends on what side you are on.
Let us accept that, say, the Divorce Action Group are a pressure group on one side and Family Solidarity and so on are pressure groups on the other side. The social arguments made by these pressure groups are very largely rationalisations of a religious position, and what I have said about the social arguments shows fairly clearly that that is so. It was very noticeable in the evidence that the law centre solicitors who admitted that 90 per cent of their practice was in family law, the solicitors of the Incorporated Law Society who represented a crosssection of solicitors throughout the entire country who are practising in family law, the social workers and practical people who have to deal with the dead relationships all favoured a change in the law. All of these people felt that, regretful as it might be, divorce would have to be brought in. In particular, the solicitors of the Incorporated Law Society, who could hardly be described as an extreme radical body, dealt with this and these are solicitors living in rural or provincial areas rather than in Dublin. Mr. Brannigan, who led the delegation said, and I quote from page 142 of the minutes of evidence:
What we do say about divorce is that given the continuance in the rate of marriage breakdown that we have witnessed over the past 15 or 16 years and the social consequences which it is bringing about we can see no alternative to the introduction of some kind of divorce legislation of a strictly controlled nature——
Mr. Raymond Downey, who is not only a solicitor but also the marriage registrar in Dublin, explained how his mind had changed on this. He said in his contribution, and I quote from page 146:
May I come in on that? I have been dealing with matrimonial cases and problems for a number of years. I have seen them from the other point of view also because I was connected with the marriage counselling service, having been chairman of it for four or five years.
Mr. Downey is still connected with the marriage counselling service.
My attitude up to seven or eight years ago was that we did not want divorce, that it led to more evils than it remedied. But in the last six or seven years or thereabouts I have changed my views on that point and I am coming around to the view that some rigid type of divorce is required here now. We all know cases where there are problems and I know bad cases make bad law, but the numbers are increasing so rapidly that something has got to be done about it.
All of these people who gave evidence had to deal with picking up the pieces of these dead relationships and with the second relationships which result. With regard to a divorce law being necessary in a pluralist society, I am struck by the attitude of the Minister for Foreign Affairs to the North. He sees himself as a kind of Sir Galahad fighting discrimination against the Northern minority. He is quite right. He should fight discrimination against the Northern minority, but I suggest to him he might look in his own back yard and see how members of other religions in this State are affected by the actions of the State. It is very difficult to ask the Northern Unionists or the Northern Protestants to, as it were, put their head in the tiger's mouth and wait to see whether it is bitten off. What is the point of saying to them: "We will keep your rights and so on", when they can see quite well that the situation has not changed here in the South and there is no sign that society is going to change here? If anything rather it is going backwards.
The fact that I have dealt with the divorce situation at such length should not be taken to mean that I do not think that the other recommendations are not of very great importance. They would act as a protection for the family. As I have said, Article 41 of the Constitution has been described as an empty formula by a much more eminent person than I. For some odd reason putting off the holding of a referendum, putting off dealing with the divorce problem seems also to imply putting off dealing with all the other recommendations of the committee. It is as though the fact that the Government did not want to grasp the nettle of the referendum meant that they were shuffling the entire report to one side. Apart from the introduction by the Minister of State of a pilot conciliation scheme which predated the publication of the report, there has been very little word of any possible action on the many recommendations, such as the raising of the minimum age of marriage, some of which are easy to implement. Education for relationships and for life is vital and all the submissions from representative groups stressed its importance. It has been lacking in Irish education up to now. One has only to look at the sort of relationship that was pictured in the "Ballroom of Romance", perhaps exaggerated, — but it is not very far away from some of the relationships between men and women in Ireland — to see that our educational system and the way in which we bring up our children do not necessarily make for the best possible relationships in marriage or the best understanding between the sexes.
The provision of a much wider and more supportive marriage counselling service is of extreme importance.
One of the most valuable contributions made in evidence was that of the Catholic Marriage Advisory Council who deliberately did not wish to discuss the provision of divorce but who dealt very thoroughly with the need for marriage counselling, the difficulties in marriage and the financial difficulties they were labouring under. As Senator Bulbulia has said, it is very interesting to find that the despised Government of the North of Ireland provide such large financial backup for this Catholic body, whereas we do not do so. The same applies to the marriage counselling service who are a non-church associated body who do the same sort of work. When we are dealing with marriage counselling it is extremely important that we should have some way of setting standards of training for those giving marriage counselling. Already some bodies are providing quasi-marriage counselling services which not only are not good in themselves but also cause real difficulty and embarrassment to those services which are professional in their approach and which are insistent on high standards of training for their counsellors. The committee recommend that we should have some body regulating this. We have seen difficulties arising in adoption because there are no statutory standards for adoption societies. Even more so it is important to establish that there are high standards for marriage counselling.
I have referred already to the age of marriage. The necessity to look at the environmental pressures that surround marriage breakdown is not particularly easy to deal with in a speech like this but all of us are well aware of the difficulties caused by the abuse of alcohol, the difficulties caused by lack of housing, by unemployment and by all these other factors which put extreme stress on marriage. These are well dealt with both in the evidence and in the committee's report and demand action and not just acceptance that they exist.
Tied in with this is the provision of a mediation service. It must be stressed that this would have to have high standards and some connection with the provision of legal services because there are limitations to mediation services. While mediation can accomplish a very great deal in agreements such as on the parenting of children where the parents have broken up, where they can both act as good parents even though they cannot live with each other, there are areas such as the disposal of property where mediation needs legal advice as well. Mediation agreements can be drawn up which will create enormous legal differences afterwards. A mediation service definitely needs the help of a legal adviser before such matters are dealt with.
On a practical level many of us have come up against this and it is very important that a mediation service should be able to see its own limits as well as its own horizons and the things that it can aim for. Nevertheless, in the area of conciliating people who have differences which cannot be resolved by reconciliation but which can be resolved by rational discussion through a mediator, a good mediation service can achieve an enormous amount. It is extremely important that we should proceed from the somewhat limited pilot scheme the Minister of State has introduced through to the setting up of a mediation service.
This brings me to the need for — this is something which I think is rather a gap in the report — a means to implement the recommendations in the report, not simply to leave it to whatever Government Department may have to deal with it. I suggest that the Government should consider in the immediate future setting up some kind of interdepartmental group, or something of the sort which was charged with the specific task of responding to these various positive recommendations in the report, who would do something positive about bringing them into effect. Otherwise we can all say: "Yes we should have a better mediation service; we should have education; we should have counselling and so on." No one will disagree with that but no one will necessarily do anything positive about it. Therefore, I ask the Government as a matter of urgency, to set up a means of implementing these various recommendations.
The report dealt fully with the various legal remedies available at present. It is naturally a temptation to me as a lawyer to go into enormous detail about these. Perhaps the best way to avoid that would be not to argue greatly about them but simply say that the recommendations of the committee in this area are very helpful. I particularly welcome the recommendations on the removal of the adversarial area out of such matters as judicial separation and the various ways in which the court deals with marriage breakdown. The ground of irretrievable breakdown is certainly more likely to be a fruitful way of dealing with it than the present situation where one side has to prove that the other side is totally black and with no redeeming features and then the other side comes back to say the opposite. This leads to nothing but increased bitterness and difficulty and it is very difficult for two parents, for instance, who have got themselves into this situation to conciliate and try to deal with the problems of their children.
I have to some extent dealt with the suggestion that the expansion of the law of nullity would solve the problem and I have made it clear that I do not think this is true. One of the difficulties, and this was referred to by Senator Bulbulia, is that the law of nullity in recent years has developed very considerably and has set up an uncertain area which the committee's report highlights. In recent judgments there has been a development from the idea that where either the wife or the husband is, because of mental disease, incapable of forming and sustaining either a caring and considerate relationship or a normal marriage relationship, a nullity decree could be granted. This has developed into the idea that if the person has a personality defect of a severe nature a nullity decree may be granted. As the judgments go on the area is becoming wider.
Also in the area of duress, which is another one which is difficult to deal with, there is a certain line of judgment from one lot of judges in the High Court which is enlarging this and then another line of judgments from other judges who are clearly trying to, as it were, hold what in other circumstances — if there were divorce — people would call floodgates but, of course, nullity is not referred to as floodgates. They are obviously trying to hold the line against this. It is already reaching the stage where many people might be in doubt as to the validity of their own marriage because determining of whether one is capable or incapable of forming and sustaining a normal marriage relationship in a marriage which may be 15 or 20 years old is very difficult and is very dependent on perhaps the right judge, the right psychiatric evidence and the right atmosphere for getting a decree. The committee are right in saying that we must have now legislative intervention in this area, regardless of whether we want to bring in divorce, regardless of whether we have a referendum. We need clarity in the legislation with regard to nullity.
In the Church of Ireland submission it was pointed out that we considered that nullity ought to be clear and well defined as to the circumstances where a marriage was void or voidable, and that it was important that people should know whether their marriage was valid. This was reflected also in the remarks of Brian Gallagher, one of the solicitors who was involved in the submission of the Incorporated Law Society, when he was asked about nullity as a remedy. Mr. Gallagher is a member of a firm who deal constantly with family law matters. He said on behalf of himself and the other Incorporated Law Society's solicitors at page 149 of the minutes of evidence:
We would be totally against extending annulment as a substitute for divorce because it would fudge the issue. We are anxious that it be easy to ascertain on what grounds an annulment could be granted. At the moment, as Senator McGuinness has said, the law has been extended by the courts, by judges interpreting the law, and by taking certain facts with which the judges were particularly sympathetic and fitting the law into those facts in order to be able to grant a decree of annulment, with the result that grey areas have developed. That is incorrect. There should be easily ascertainable grounds of annulment. One should be able to look at the law, which should be written down and codified and one should be able to see how to get an annulment. There should not be any great extensions of the law. The law should be clear.
He continued:
It is important that it be codified and that it take account of modern developments of psychiatry but under no circumstances should annulment become a substitute for divorce.
Again, I would point out that Mr. Gallagher is a very committed member of the Roman Catholic Church and is involved in many of their bodies, for instance, the Commission for Justice and Peace on which he works very hard. That does not prevent him from thinking that annulment is not a solution to this problem.
The chapter dealing with the family court structure — chapter 9 — grew very much out of the experience of the family law solicitors and the Incorporated Law Society solicitors and those of us who have experience in the situation. There are very vivid descriptions in the evidence as to the quality of the service being offered to people involved in family law cases at the moment. At the outset, this is not something that can be blamed on the Judiciary or indeed on the people who are trying to administer the court system because the whole family law jurisdiction has been wished on them all of a sudden, in particular with regard to the Circuit Court which never dealt with these matters before the 1981 Courts Act. They were not given any extra staff, buildings or facilities and they were not given any extra time. They were expected to take on this large and time consuming, difficult jurisdiction without any facilities to help them to do so.
It is no wonder that the system has turned out to be defective. The Law Centre solicitors pointed out how difficult the situation was in the various courthouses. In one of the reports on courthouses which was prepared by members of the Bar it was pointed out that very few courthouses throughout the country have even a public lavatory, let alone waiting room facilities. One can find oneself in a position where even in Dublin in the Circuit Court one is standing in a crowded hallway which is full of prison officers handcuffed to prisoners who are being brought up for indictment and criminal charges and squashed in with them are family law clients. Then out of the back-room of the court comes the court crier who reads out in public the names of everyone involved.
I might add that now and again there have been Members of these Houses involved in cases like this. Great care has been taken that Members of these Houses are kept in cars especially around the corner from the courtroom lest it be embarrassing to them that they would have to appear in the same dreadful circumstances to which ordinary members of the public are subjected. Perhaps some of us should think how we would like it if it was our marriage that was on the rocks and we had to stand in the midst of this kind of public situation and have our names shouted out so that everybody could hear that one of us was in trouble. I do not like to be as personal as this but this has occurred. If it is a friend of the management, as it were, somebody who is involved in the legal profession or politics, careful measures are taken so that they are not exposed to this enormous embarrassment but that help is not given to any ordinary person. We must stand for the rights of the ordinary person in our reform of the family court structure. This has been gone into in considerable detail in the report. There is neither time nor is it desirable now to go into it in detail but I think the recommendations are extremely good.
I would like to go back to the issue of why I support this amendment. I can understand what Senator Dooge and the Minister of State, Deputy Fennell, mean when they say there should be an informed public debate on this matter and that there should be a rational discussion of the rights and wrongs of it. At one stage I felt that I might very well agree with their position but on further consideration I cannot agree with them and I must support the amendment, partly because I think that kind of argument is being used as an excuse to put off indefinitely any actual dealing, not just with the referendum, but with any recommendations of the committee. Despite my normal admiration for the Minister of State this was made quite clear towards the end of her contribution where the argument was made that the time was not ripe. The time is never ripe for any radical reform and change. If we wait until the time is ripe we will certainly have a nuclear power station long before we have divorce. I do not believe in that kind of argument.
Secondly, I have come to believe that further debate among the public will not lead to rational discussion, unfortunately. It will lead to the building up of bitterness and pressure groups and perhaps an even more embittered situation than that which occurred in the previous referendum, with an opportunity for both sides to move into further entrenched positions and with a further firing of bullets of rhetoric by both sides rather than rational consideration. Perhaps the discussions of the Committee on Marriage Breakdown were not always all that rational but they were as rational as we are going to get. Other discussions from now on are going to be more irrational, more bitter and more difficult if anything. I do not think we will have anything to gain by waiting for them.
