On the last day I had been considering, in detail, the submissions made to the Joint Committee on Marriage Breakdown on the divorce issue. These are set out, as Senators are aware, in the section of chapter 7 dealing with divorce. They are divided, firstly, into the arguments in favour of divorce and these are followed by the arguments against divorce. Senators will note that all the points which have already been raised in this debate by Senators and which will continue to be raised by those who participate later today, or next week, were fully considered by the Joint Committee. They set out the arguments for and against divorce and then said how the committee considered those arguments. They did so in great detail and in a very fair-minded and balanced way.
This parliamentary committee, representative of all sides of the political spectrum in both Houses, weighed up the evidence and the arguments and came down in favour of accepting the need to remove the constitutional ban on divorce. The political significance has not yet been fully appreciated. The matter has been examined in great detail, it has been examined by a committee who were empowered to, and did seek representations from the public. They received in excess of 700 written submissions and devoted a lot of time listening to groups representing both sides of this very important debate and those with a specialist knowledge or interest in the subject.
The calling for the removal of the constitutional ban on divorce by the committee was not done in a neutral or abstract sense. It was a positive commitment on the part of the all-party committee because the committee called for the removal of the ban on divorce in a manner which was not ambiguous. It was clearly intended to prepare the way for the introduction of divorce legislation. I would remind Senators of this by quoting from the relevant paragraph in the summary of the recommendations of the committee. There we see summarised precisely how the committee wished to see the removal of the ban on divorce considered. It said:
Any such referendum should be in a positive format, replacing the present Article 41.3.2º of the Constitution with a provision, specifically authorising the Oireachtas to legislate for the dissolution of marriage. (Paragraph 7.8.29).
That shows the clear Parliamentary view of the all-party committee and their recommendation having very carefully weighed up the arguments. I invite Senators — particularly Senators who are either worried or not yet sure of their view on this issue — to look at the very detailed arguments as set out, to look at the way all the fears and apprehensions were expressed. They are set out in the report and they were considered by the committee. Yet the committee clearly and unequivocally recommended the removal of the ban on divorce and did so in the context of preparing the way for the introduction of divorce legislation.
I turn now to an important issue in relation to the kind of divorce legislation which the committee wish to see. I want to address in particular the comments made by the Minister of State, Deputy Nuala Fennell, in her contribution to the Seanad debate on 27 June last. Senators will recall that the all-party committee had referred to the kind of divorce legislation which they would envisage if the ban on divorce was removed. I have already referred to this passage but since I am going to deal with it perhaps I should remind the House of what the committee said about it, in summary terms. The committee emphasised, that if the referendum were held and passed, a situation of divorce on demand would not be appropriate that it would be essential to have adequate safeguards.
One of the criteria that the committee recommended was that any such divorce legislation should be based on the concept of marital breakdown. I was concerned and indeed somewhat worried when I read the contribution of the Minister of State on this point, because she appeared to be confused about different concepts. It also appeared that she had not read the report of the committee on marriage breakdown with the care that one would wish. She noted that the Joint Committee did not wish to have introduced into Ireland — because it would be unacceptable to the vast majority of people — the concept of divorce on demand. But she asked how is this to be reconciled with the recommendation of the committee that divorce when introduced would be based on the concept of irretrievable breakdown of the marriage? A passage from the contribution which the Minister of State made highlights the difficulty she had with this. I want to address, and I hope, unravel that difficulty for her and remove some of the confusion from this passage that I am going to quote. The passage is from column 1183, Volume 108 of the Seanad Debate of 27 June 1985 and it is as follows:
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.
The Minister goes on in this vein. There appears to be a very high degree of confusion in that passage. It would appear that the Minister has not in fact understood the recommendation of the joint committee on this point. The interesting aspect of the analysis of the joint committee is that the concept of irretrievable breakdown of the marriage is considered by the joint committee initially in the context of judicial separation. That is where we have the full analysis of this concept of the irretrievable breakdown of the marriage. I will come to the relevant passage in a moment, but briefly the joint committee unanimously recommend that irretrievable breakdown becomes the basis for a decree of judicial separation. It is later in chapter 7 that the committee consider the question of divorce legislation if the constitutional ban on divorce is removed. They link back to what they said on irretrievable breakdown in the context of a judicial separation and said that there should be the same approach to the divorce issue. It is most important that the Minister of State appreciates that the committee recommend for existing remedies, for the remedy of judicial separation, that the law be changed and improved by introducing as the basis for the granting of a decree of judicial separation, the concept of the irretrievable breakdown of the marriage. But then — and this may meet a large part of the worry and concern of the Minister — it is quite clear from the way that this is set out that this ground would not remove from the court the importance of being satisfied that the marriage had irretrievably broken down. The basis on which the court would be satisfied would be by looking at the criteria as set out by the committee on this point. I will refer to what the committee had to say on what would constitute the irretrievable breakdown of a marriage. It will be perfectly clear that the matters which the court will consider, whether in the context of a party looking for a decree of judicial separation or whether, in the future, in the context of looking for the remedy of divorce in our society will be whether or not there had been a irretrievable breakdown of the marriage. The passage I want to refer to is at page 49 of the report of the committee. It is as follows:
1. The court should grant a decree of Judicial Separation if it is satisfied that the marriage of the person to his or her spouse has irretrievably broken down. Irretrievable breakdown should be the one overall ground for the grant of a decree of Judicial Separation.
2. In considering whether or not a marriage has irretrievably broken down, the court should be satisfied that such breakdown has occurred if an applicant proves one of the following:—
(a) That his or her spouse has behaved in such a way that the Applicant cannot reasonably be expected to co-habit with that other spouse.
(b) That his or her spouse has been guilty of adultery.
(c) That his or her spouse is in desertion or in constructive desertion of the Applicant.
(d) That the Applicant has been living separate and apart from the other spouse for a continuous period of not less than one year and the other spouse consents to the making of the decree.
(e) That the Applicant has been living separate and apart from the other spouse for a continuous period of three years.
(f) That such other facts and/or reasons exist or existed which in all circumstances make it reasonable for the Applicant to live separate from, and not co-habit with, the other spouse.
That is the view of the joint committee, as to the proper basis for the court examining the situation and concluding on the basis of evidence and the examination of the parties and any witnesses that there has been an irretrievable breakdown of the marriage. The passage which I have quoted from the Minister of State's speech suggests that she would not accept any change in relation to the grounds for obtaining a decree of judicial separation. I hope that was said inadvertently, I hope that is not in any way an indication of the approach either by the Minister of State or the Department of Justice to significant reforms expressly called for by the joint committee in our existing law in relation to judicial separation as well as being also the proper basis for future legislation providing for the remedy of divorce.
What might well be the subject of discussion in this House is whether Senators have a view on these criteria which are the unanimous view of the joint committee; there was no dissent at all on them, but maybe Senators would prefer, for example, a longer period of separation. This is a recommendation relating to existing law. I will come back to a number of the important recommendations on other areas besides divorce which the joint committee recommended, but I want to take up that important issue which appeared to reveal some confusion on the part of the Minister of State.
While still dealing with the recommendation of the joint committee to remove the ban on divorce I want to address a recent initiative taken in that area, namely the proposal by Deputy Michael O'Leary to introduce as a backbencher a combination of Bills seeking to remove the constitutional ban on divorce and a Marriage Bill which would be the subject of a second referendum if his combined proposals were to be acceptable. There is a superb irony in the fact that this Private Members' proposal comes from Deputy O'Leary who has changed party and is now a backbencher. When Deputy O'Leary was in the Labour Party a Bill was drafted — I was the drafter of it — entitled the Eighth Amendment of the Constitution Bill, 1980. I have a copy of the text of it here. It was proposed to be an Act to amend the Constitution by removing the ban on divorce and inserting a different formulation. I will put on the record of this House what that formulation would have been. It would have inserted a new section 3 to Article 41 as follows:
1º The State pledges itself to guard with special care the institution of marriage and to protect it against attack. The State shall take measures to encourage adequate preparation for marriage and to promote the stability of marriage.
2º It shall be the duty of the State, in making provision in cases of marital breakdown, to seek reconciliation between the parties to the marriage, to provide for the physical and economic protection of vulnerable family members and to afford a means for the dissolution of marriages which have broken down irretrievably.
I also have a copy here of a brief explanatory memorandum to that Bill which was circulated to members of the Labour Party in 1980 with a view to the Labour Party introducing that as a Private Members' Bill. Deputy O'Leary, who was then deputy leader of the Party — Deputy Frank Cluskey was the leader — opposed the idea of the Labour Party introducing a Private Members' Bill and sought instead to have the Labour Party introduce a motion to establish an all-party committee on the subject, and that is what happened.
In the autumn of 1980 the Labour Party introduced a motion to establish an all-party committee to examine the question of the removal of the ban on divorce. The fact that the Labour Party had introduced that motion was used as the basis for refusing to support Deputy Noel Browne who sought to introduce a Private Members' Bill. He could not get enough Members of the Dáil to support him on that occasion. Since then efforts by The Workers' Party to introduce Private Members' legislation have not been supported on the basis that there was about to be established, or there was established and working on the issue, a Joint Committee on Marriage Breakdown. Now that joint committee have reported — their report is dated on 27 March 1985 — and reccommended the removal of a ban on divorce.
I understand that next week we are going to have a proposal by Deputy O'Leary seeking to have his Bill or combination of Bills published and circulated for discussion. We have now run out of excuses on this. Those who are clearly committed to the removal of the constitutional ban on divorce and the introduction of divorce legislation, which would form part of the draft Marriage Bill which Deputy O'Leary wishes to have published and circulated, cannot but be prepared to allow the publication and circulation of this legislation. It is a way of advancing the debate. It is a way of ensuring that the two Houses consider this issue. The legislation will be put through both Houses of the Oireachtas only if the Government are prepared to introduce the necessary legislation and to have a referendum subsequently to endorse that legislation.
We have gone through all the hoops and loops on this issue. We have had what the motion calls for. We have had the widest possible debate on the issue. We have had previous efforts to introduce a Bill to remove the ban on divorce. The time for excuses and political jockeying is gone. Notwithstanding the fact that I must regard Deputy O'Leary as a relatively recent convert to the idea of introducing legislation on this subject, I welcome the initiative he has taken. There is considerable merit in the formulation he has proposed. It is a compromise on any views that I hold, in that I would prefer to go further than this proposed Tenth Amendment of the Constitution Bill, of which I have seen a text, but it has a certain merit. It proposes to give the people a control over the kind of divorce legislation which might be introduced. For those Senators who have not had the benefit of seeing the text of this Bill — which has not yet been published as an Oireachtas Bill — I will refer to the relevant provision which proposes the removal of the present ban and the substitution of the following wording:
No law shall be enacted providing for the grant of a dissolution of marriage unless the Bill for such law has been approved by the people as though it were a proposal to amend this Constitution submitted by Referendum to the decision of the people in accordance with Sections 2 and 5 of Article 46 of the Constitution.
That is quite a clever formulation given the present state of public opinion. There is a very clear majority, 70 per cent or more, of the Irish population in favour, when asked the question "Do you believe divorce should be admitted in certain circumstances?" There are circumstances when 70 per cent accept that people should be able to get a divorce and remarry. That has become clear over the last half decade. The trend shows an increasing number, who will soon be an overwhelming majority, in favour of divorce in certain circumstances. When a different question is put, such as "Would you be prepared to support a Bill to remove the ban on divorce? " You get a much more even divide — 43 one way, 45 the other way and the rest do not know.
There is also much less sense of public opinion consolidating in one way or the other. Certainly in the late seventies and early eighties the number who were prepared to say yes, they would favour the removal of the constitutional ban, was growing. In recent times there has been a certain retrenchment in that, which shows a public anxiety and concern. It is clearly an anxiety and concern that we have to face up to, so the proposal by Deputy O'Leary is a clever formulation. There is no doubt about that. It is one that warrants serious consideration and public debate and I see no reason at this stage for it not being given the necessary parliamentary approval to have it published and circulated, and time given for it to be debated. The only thing that should pre-empt that would be that we have a Government Bill which proposes to remove the constitutional ban on divorce and that would deserve to and should get priority.
I have spent a considerable time looking at the proposals of the Joint Committee on Marriage Breakdown on the issue of divorce. I have done so because it was the major social issue which led to the establishment of the all-party committee. That is clear in so far as this was the commitment of the joint programme. It was at that time a compromise for the Labour Party who are committed to the introduction of legislation seeking the removal of the ban on divorce. I also wanted to reinforce what Senators Bulbulia and McGuinness emphasised in their contributions, that the committee spent a great deal of time on their work. I would use the same words, that is, that the members of the committee were privileged to have the opportunity to look as fully and as deeply as we did into that particularly difficult issue. They have recommended the removal of the ban and recommended it in the positive context of envisaging the introduction of divorce legislation.
I wish now to turn to some of the other areas considered by the joint committee because in a sense they are of equal importance. They concern the whole range of remedies, the procedure and the court system in relation to our marriage law. The reason the joint committee had so much work to do was because this was such a neglected area. It is an area where we have seen very little reform and legislative attention. I began my contribution on the last occasion by saying that I regretted that the joint committee did not adopt the approach of issuing a series of interim reports. Had we done so, each of the recommendations in the substantial areas would have had a great deal more impact. There would have been more likelihood of an early debate leading to specific reforms or at least commitment to reform in those areas.
However, I wish to look now at the analysis and recommendations of the joint committee in relation to some of the other legal remedies dealt with in chapter 7 of the report. The first remedy dealt with is nullity of marriage. This is an area that has been the subject of considerable analysis. There was a White Paper produced in the mid-seventies by the then Attorney General, Declan Costello, which regarded reform of the law of nullity as being of the utmost urgency. That was a decade ago and we still have not got around to taking any action. There was a more recent report of the Law Reform Commission, looking in great depth into the law of nullity and now we have the analysis in the joint committee's report concerning the law of nullity.
The joint committee seek reform of the substantive law. They want it clarified and codified because they noted that in the absence of updating legislation there is a worrying variation in the judicial pronouncements in the area of nullity. To a worrying extent it may depend on the individual judge whether a person involved in what might be called a difficult or marginal case would obtain a decree of nullity. That is not desirable from any point of view and it is not a very fair position in which to place the members of the Judiciary. The committee call for clarification and updating of the law on nullity.
They also call for something which is probably of equal importance. They call for an immediate reform of the procedure, the way in which a person can apply for and obtain a decree of nullity. I recommend to Senators that they look at what the joint committee have said on that.
The joint committee point out at pages 37 to 39 the reasons a petition for nullity is so expensive. First, you can apply only in the High Court. The Report refers to the cost of bringing a defended application for nullity — in which counsel is instructed and which takes approximately one day to hear — as being in the region of £2,000 to £3,000. How can we possibly say that this is allowing access to justice, to fair procedures in our society? How can we say it is providing a remedy for people? It is possible that one party may have access to legal aid through the law centre. It is even possible that both party costs might be met that way, but that would be rare. A considerable portion of the present cost stems from the cumbersome procedure which is set out at pages 38 and 39 of the report. It is worth referring to the fact that it takes from the letter (a) to the letter (r) to set out the steps of the procedure. It is clearly a procedure which has been allowed to become completely ossified, completely unreformed and unmodified so that even for lawyers it is regarded as a difficult and outdated procedure.
I turn now to the next remedy. I have already touched on it in another context in my contribution this morning, the remedy of judicial separation or as it is sometimes called divorce, a mensa et toro. Again the law governing this remedy dates from more than 100 years ago. The Matrimonial Causes and Marriage Law (Ireland) Amendment Act, 1870 provides for the jurisdiction and the granting of a decree of judicial separation. As the committee set out, the grounds are threefold — proof of adultery, proof of cruelty or proof of unnatural practices. It is entirely fault based, so no matter what has happened between the parties if you cannot establish one of those three categories of possible fault then the remedy of judicial separation is not open to the parties. That was the basis for the reform sought by the joint committee, seeking to substitute for those three fault based grounds, the one ground of irretrievable breakdown of the marriage but which of course would encompass those three grounds and others. Apart from looking for that substantive reform, the committee also made a number of important recommendations in relation to the jurisdiction of the court when somebody is looking for a judicial separation, that the court should have a lot of other powers or, as they are called in legal terms, ancillary powers. For example, the court should have an ancillary power to decide who would have the right to live in the family home as and from the date of making the decree of judicial separation and how the court would approach the exercise of that power. The committee recommend that the court would have the ancillary power to divide the various property or properties of the spouses between the spouses, so that at the point of the decree of judicial separation that matter could be dealt with, also that the rights of succession could be assessed by the court at that time and, finally, that the court would have power to make any necessary ancillary orders in relation to custody of or access to children and maintenance orders so that the one legal remedy would empower the court to deal with the actual problem. At the moment in a situation where there are various issues, as there almost always are, for example, in relation to the family home, maintenance and any children, the parties have to bring a combination of proceedings under different marriage law Acts. This is one of the general criticisms made by the joint committee of that procedure.
The joint committee also considered in detail the provisions in relation to guardianship and custody. Basically, the committee were of the view that the provisions in relation to guardianship and custody as they stood were working reasonably well but they did feel that in particular in relation to maintenance orders there was need from the very beginning of any proceedings seeking maintenance, whether it was maintenance on behalf of a spouse or maintenance on behalf of children of a marriage, for the court to have means of ensuring that it had full knowledge of the means and financial resources of both spouses in order to make an assessment as to maintenance.
The committee also considered the remedy of barring orders and looked at the 1981 legislation which amended the original Act which introduced the barring order, the Family Law (Maintenance of Spouses and Children) Act, 1976. They looked at the manner in which the 1981 Act extended the scope by introducing a protection order as well as a barring order and made a number of technical recommendations in relation to the operation of barring orders. A number of the matters considered by the committee reflected a general concern about the operation of barring orders but the committee do make it clear that a barring order is not a remedy for marriage breakdown, that it fulfils a specific purpose and must be available and accessible to fulfil that purpose, to protect a spouse or children where their safety or welfare demands it.
I have spent a little time directing Senators towards the types of reform in the general marriage law and legal remedy for marriage that the committee considered because it would seem as though the only reasonable response on the part of the Government, when they get around to considering this report and formulating a response to it, would be to envisage perhaps a White Paper on general marriage law in Ireland in which the Government would commit themselves to a range of substantive reforms of our marriage law, taking into account the recommendations of the joint committee and, indeed, other reports such as the reports of the Law Reform Commission, where these exist. My reason for saying that is that it is depressing to see the extraordinary time lags and bureaucratic delays in our legislative and parliamentary process.
Let us take one measure for which, certainly from debates in this House, there is wide support on both sides of the House, the proposal to remove the status of illegitimacy and the relatively recent Government paper on the Status of Children Bill which included a draft Bill. That is one measure of reform, but it is taking a very long time. First, it took a long time to get the proposal published and we still have not seen the text of a Bill. I would be concerned that if one area were tackled on its own then it could take the rest of the lifetime of this Government to have one Bill — for example, reform of nullity, or perhaps some reform of matrimonial property — whereas what is needed is a broadly based approach.
One of the reasons for a broadly based approach being necessary is that an important element in the analysis and recommendations of the joint committee, which I have already emphasised in the case of nullity, was to look for reform of the procedure for obtaining family law remedies. We need to have a comprehensive approach in which the procedure for obtaining family law remedies is simplified, some of the out-dated legal jargon removed, a standardising of the procedure and, also, where a person was seeking a judicial separation that the court would be empowered to make any relevant ancillary orders in relation to other matters such as, as I have already said, family home, custody or access to children and so on.
Another important recommendation of the committee was in relation to family courts. This, again, is a general recommendation since it applies to the whole area of family law remedies. It is an extremely important recommendation of the joint committee. What was interesting in the discussion on this issue was, first, that this reform was referred to in a very wide number of the submissions sent to us. Right across the spectrum where there was a sharp divide on other issues — those against any change in the area of divorce, those for a change in the area of divorce — all wanted reforms of the court system for hearing and determining family law cases and disputes. This unanimity of view from the outside about the need for reform was shared by members of the joint committee. Although it was in one way one of the most radical proposals in the report of the joint committee it was also one of the least contentious issues. Nobody was making a stand for continuing the present system, neither the lawyers nor non-lawyers who were represented on the committee. That is very significant and I had hoped to see an earlier response to this. It is a political difficulty. Because this report deals with the divorce issue, the Government are not prepared to address it or consider it, but that is tragic because this report deals with so much else which is urgent and does require a detailed and positive Government response.
One of the areas in which it would be hoped that there would be an early and positive Government response is reform in the family court area — family court is the wrong name for it now — the reform of the present court structure. Therefore I would like to refer to the summary of the joint committee's opinion on this. Not only was it unanimous, it was also non-contentious as an issue. It was considered in great detail because it formed an important part of the submissions and representations made to us. On what it called the new family structure the committee recommend as follows: I am quoting from page 122 of the report:
A new body must be established with full and exclusive powers to deal with all types of family cases. Such a body should form part of the High Court . . .
This body should be referred to other than as a court, and should be known as the "Family Tribunal". . .
The Family Tribunal should be staffed with a sufficient number of Judges to ensure that family cases are held fully and speedily at a location which is reasonably convenient to the parties . . .
Judges should be appointed solely to hear family cases and different criteria should be applied in selecting Judges for this purpose. Broadening of the present statutory requirements to become a Judge may be necessary to allow for the appointment of suitable candidates . . .
Consideration should be given to limiting the appointment of a Judge to the Family Tribunal to a fixed period of years . . .
Suitable training should be provided to give both Judges and lawyers, who regularly deal with family law matters, a proper insight into the social and psychological aspects of the type of cases that occur . . .
A comprehensive welfare service should be attached to the new Family Tribunal. This welfare service should be staffed by social workers preferably with experience in dealing with marital difficulties . . . .
A representative of the welfare service should be present during the hearing of all family cases . . . .
Proper accommodation in which to hear family cases should be provided for the Family Tribunal. In some cases it may be possible to use present courthouse accommodation for the purpose. Suitable community facilities may also be available locally in which the Family Tribunal can sit . . . .
It will be essential that the Family Tribunal sits in as many centres of population as possible to ensure easy access to the service. In the more densely populated areas, specialised facilities should be made available on a permanent basis providing a suitable atmosphere for the hearing of family cases . . . .
One type of form should be used to initiate any type of family application . . . .
The manner in which family cases are at present heard should be modified with the aim of reducing the formal adversarial nature of such proceedings. An obvious step in this direction would be the abolition of the wearing of wigs and gowns by Judges and counsel . . . .
A Judge sitting in the Family Tribunal should have a general discretion to waive the normal rules of evidence if this is desirable in the interest of justice. Also a Judge sitting in the Family Tribunal should have the power to direct that further evidence other than that produced by the parties should be heard by the Tribunal . . . .
Written court judgments in family cases should be made available publicly in such a manner as to ensure the anonymity of the parties . . . .
Every effort should be made to reduce the cost of resolving marital disputes and a shift from outside adjudication to the parties seeking a settlement through mediation and negotiation should help to achieve this goal. This simplification of procedure in the Family Tribunal should lead to a reduction in legal costs and allow more people to represent themselves as they wish . . . .
A comprehensive system of civil legal aid in respect of family matters should be introduced . . . .
There should be no Stamp Duty payable on court documents and family cases and VAT should not be payable in respect of legal fees incurred in a family law matter . . . .
That is very radical and comprehensive proposal for reform of the family court structure. I believe it would be greeted with wide public support and enthusiasm, particularly from those who have any contact with the present system and the present court structure and procedures in seeking access to a family law remedy or in defending a family law application by another party. This is not something that can be achieved overnight. It is a complex area in which it would be necessary to give a great deal of thought and care to the form of legislation and to the other types of provisions in relation to accommodation and location of the family tribunal which would be necessary. I underline and emphasise the sense of urgency, the need for the Government to consider this and the fact that this reinforces the desirability of having a White Paper which included the substantive reforms in marriage law and the reforms and procedure in the court structure.
Another important area which the committee consider is the area of mediation and the committee spent some time in explaining their terms and in distinguishing between conciliation and reconciliation. With regard to conciliation, the acceptance that there are problems which cannot be resolved within the context of the marriage but which can be conciliated, in order to avoid confusion between the terms reconciliation which is also dealt with in the report, and conciliation, as it is called in a number of other jurisdictions, the joint committee adopted what is the clearer term, once it is understood, of mediation. The joint committee in their report dealt with mediation in chapter 8. They first of all considered the purposes of mediation. We had some difficulty in the joint committee with the first assumption before you can have the proper use of the facility of mediation and that is that mediation accepts that the parties' marriage has broken down. This was a concept that gave rise to some difficulty but it is a necessary acceptance which is the reality for an increasing number of couples in our society and where at the moment, with very few exceptions, they do not have the possibility of getting the professional help and counselling to cope with the reality of the marriage breakdown.
The committee looks at the type of help which couples who are involved in marriage breakdown could look to under the present system and as possible to introduce. You can either have simple bilateral negotiations between the parties but these, in so far as they exist, do not allow the parties to have objective help and they are not of great assistance in seeking to resolve issues on which there is great dispute. You can also have supported negotiations where the parties have the assistance of outsiders whether they be legal advisers, tax advisers or other outsiders.
You can have the concept of mediation. The advantage of the mediation structure is considered by the committee at page 95 as being the preferred solution because it retains in the parties greater control over the outcome of their case. The mediator does not decide the matter for them. The mediator facilities the process whereby they can seek to reach a proper decision. The committee, having considered all this, concluded at page 97 of the report that it would be not just desirable but necessary as part of a general reform of marriage law and of the procedure and family court structure that there be established an independent mediation service and that this mediation service be used at an early stage and preferably before the question of any court proceedings has arisen. The committee recommend that it should be staffed by specialists whose sole function would be to attempt mediation and to attempt to resolve the conflicts which had arisen between the parties by way of agreement. The committee see a direct link between the reform of the family court structure and the best operation of this kind of mediation service, because the two would, in fact, go hand in hand. If the parties first of all had the opportunity, through the provision of the resource, of an independent and countrywide mediation service then they would be in a position to look themselves to this service for help when the marriage had broken down and they had difficulties to resolve.
The committee were also of the view that lawyers should be required first of all, to inform and, secondly, to encourage in the sense of seeking to have their clients avail of the mediation service. The committee were not of the view that it would be helpful to have a compulsory mediation service but considered that there might be periods or opportunities when the lawyers and the court itself encouraged the parties to consider returning to mediation or referring certain parts of the potential areas of conflict between the parties to mediation. Therefore, the joint committee deal expressly with the methods of referral in the report and with the experience in Britain of the operation of a mediation service, together with the earlier recommendations of the joint committee on the importance of having marriage counselling and supports for marriage with a view to helping to reconcile the parties where that was possible and where a little preventive help might save the marriage relationship from getting to the stage where it had either irretrievably broken down or was extremely difficult to retrieve.
These recommendations are an important parallel system to any genuine commitment to reform of the legal remedies, to reform of the procedure and to reform of the courts system. In a sense I think it is fair to say that you cannot go very far with one without the other. If the Government were, for example, to say "we like what the committee say about marriage counselling and about mediation; we will do a certain amount and we will invest a certain amount of money in that area," it actually would not achieve any considerable improvement because of all the problems, delays and expense in the system, because of the outdated remedies, the intimidating environment of court and so on. Similarly, if the Government were to accept the need for specific reforms and began in the manner I have described by taking one Bill and starting a long process and then perhaps a few years later if the same Government were there or the next Government, taking another Bill and starting the same process again over the next few years, that would not result in the kind of change of context in which family matters would be examined and considered with people who are going through a very difficult and lonely process of having problems whether within their marriage or as a result of the fact that their marriage is irretrievably broken down. They would not be greatly helped by once-off specific remedies. They would be a help to a small percentage of people in a narrow context.
Another reason why it is desirable and indeed urgently needed that the Government respond broadly to the recommendations of the joint committee is that this would from the beginning affect attitudes of lawyers and judges who at present administer and give effect to the process. If the Government committed themselves to undertaking a programme of reform which would encompass reform of the procedure in the manner I have outlined, reform of the family court by introducing a new family court structure and a commitment to broad-based reforms and legal remedies, this would signal a new approach to family law cases and family law disputes. It would give great encouragement to those who are seeking to administer the present system as best they can by promoting some of the values I have been talking about and they would be reassured in the knowledge that at last a Government appreciated the extent of the need for reform in family law and were prepared to commit themselves to that broad measure of reform. If we do not get a comprehensive response, then much of the impact of the report of the joint committee will be lost and a lot of the linkages, the linkage between introduction of better supports for marriage and improvement in remedies and procedure for obtaining those remedies and the court system through which parties would go looking for the remedies, will be lost.
I should like to conclude by expressing again the points I made at the outset. The report of the Joint Committee on Marriage Breakdown of which the Leas-Chathaoirleach was a member covers one of the most important and urgent areas of reform and it should not lose out because the report also addresses one of the most sensitive political issues. There is a real danger that for that reason it will become yet again a political football, a report that the political parties do not wish to take a position on because it has the recommendation on the divorce issue.
I will be supporting the amendment to this motion because I believe that that issue has to be grasped and that the committee clearly weighed up and expressed the reasons why it has to be grasped. Equally, I urge the need for a comprehensive and early response from the Government on the other significant and important recommendations on the whole area of marriage law and preferably the kind of response which will advance the implementation of the recommendations. The best way to do that is for the Government to commit themselves to the White Paper of reform of marriage law.
