When we last debated this matter I had paid tribute to the Joint Committee on Marriage Breakdown for the manner in which they had set about their task in debating what is without doubt a matter long neglected in popular debate in Ireland. I had noted as well that some of the lengthier and very valuable speeches so far made on this debate had in fact been made by the women Members of the Seanad. While I consider this is a good thing on reflection I can see that it tells us something else as well, that is that in changing the law in relation to the strategies that are available consequent on marital breakdown it is something that affects every member of the State and all legislators. In that connection I severely criticised last week those who remained silent on this issue because it is an issue that affects the suffering and the circumstances of very many families, adults and children.
I was responding — and this is the point at which I would like to resume — to some of the thoughtful comments made by Senator Seán O'Leary in which he criticised the report for the detail and the figures which are included in it. I do not agree with him that you should criticise the methodological structure of this report or the manner in which facts or issues are presented in terms of the presence or absence of detail. At the end of the day the function of a legislature is to make laws, to reflect on inadequacies, to make the case for amendment or innovation, to respond to new social, economic and legal circumstances. If that is so, of course it is incumbent upon those who prefer base documents which argue for changes in the law to be as detailed and as strong in their arguments as possible.
This is very much a lesser project for the Committee on Marriage Breakdown than the political task of breaking silence on the issue of divorce in Ireland, because we are in a very unusual position indeed. We have tens of thousands of broken marriages. I am not interested in the detail of the figure. Its magnitude alone tells its own story: perhaps 100,000 people affected in one way or another by the absence of one of the remedies available to marital breakdown.
It is only correct to pay tribute to the members of the Committee on Marriage Breakdown in the task of breaking silence. Marital breakdown is a very interesting topic when one examines it and the ability of the law to respond to it. There are many things in Irish society about which people do not speak but which are real in terms of their impact on the lives of people. Among these are mental illness, child abuse and indeed marital breakdown itself. Most people who have come to meetings to discuss what has happened their marriages, reflecting on the law, reflecting on the position of their children and themselves and new unions which they may have formed, have usually done so after a long period of quiet suffering, a great deal of personal pain and an enormously long period of silence.
In some ways the Committee on Marriage Breakdown — I pay tribute to them again for this — have been more courageous and more forward looking than the main body of legislators in both Houses of the Oireachtas. There is in Irish politics very frequently an unfortunate inhibition to speak on matters about which there is not a great popular discussion. If one was to follow the logic of that one would be left with the uncomfortable situation that those who suffer quietly and alone or those who don't have a great public debate about their circumstances would have to wait a very long time for an evolved public concern.
In that case you are left with the question as to what status you can give the argument. Let us wait until there is a popular demand for divorce before we have a constitutional referendum to remove the inhibition and certainly long before we move to the practical debate as to the form, circumstances and process of divorce that would be suitable to Irish circumstances. I have no doubt at all that the Legislature should aim and build itself towards meeting need and not to be dragging its feet in, if I may say so, a somewhat cowardly fashion behind the bogus notion of consensus. The history of law making in areas like this is not one of waiting until there is an enormous public majority for changing the law. This is not to say that one is imposing a minority opinion on the public who, after all, elect the Legislature. It is merely indirectly stating that it is the function of legislators to lead in responding to new need, changed circumstances and the kind of pain and suffering that I have been describing.
I am not impressed by the argument. It would be a pity to go to the country and to have this proposal to change the Constitution defeated. This is the argument I have heard so far from some sections on this debate. I respect the motivation of those who suggest it, but I profoundly disagree with it. I say to them that if they wanted, for example, to look at the debate on slavery, historically, in any one of the other legislatures they would find that the people who made the case for the abolition of slavery made so not only far short of inter-party agreements and large popular consensus but in the teeth of enormous hostility from those who wanted to keep it alive.
You could take other issues one after the other in the study of reform in legislatures in different jurisdictions. It is always the same. If you argue like I have been you are really saying that it is the function of the Legislature to anticipate, to build the case, to inform the public, to inform the debate about legally reforming options and so on. Yes, the committee have done that, so I do not take refuge in criticising their statistics, asking for more reports or waiting for a day in which you will have something like 70 per cent of the people saying they want to change the Constitution. The relationship of people, politics and Legislature is against this notion.
Therefore, having said that it was the function of the committee to help break the silence on this issue and to open up a debate, there is an enormous obligation on us to debate this matter publicly. Another question arises in relation to the two options I have discussed. Supposing you said, "We will wait until there is all party agreement, until there is a very large majority in the country in favour of divorce" what kind of debate will you have? It will be a long, strung out, bitter ill-informed, prejudiced affair. If, on the other hand, you say that you intend to hold a constitutional referendum and be definite about when you are going to hold it — that it will be held, let us say, in the lifetime of this Government — you focus people's minds on what the options are. People will have to move past their rhetorical citation of bogus arguments for and against that have gone on for nearly a hundred years — for example, the argument it is the children that suffer, that it is the innocent spouse that will suffer and so.
These are legitimate arguments — I will turn to them in a moment — but they are something that can be exhausted in a century. We really do not need to have the entire argument rehearsed for several decades, not only dragged out and dishonest in its structure, in the competing rhetorics and so forth, but also reflecting something else which is even more dangerous: putting into the argument the nature of the connection between Church and State. It is one thing to have woolly, vague, inaccurate and daft arguments but it is another thing altogether to be told that you are bound through a curious contortion of theology to have to accept these as the price of membership of a particular denomination. Indeed, I felt that in other debates of a similar nature one of the casualties was the very considerable development within theology itself and within the discussion of the relationship between Church and State of the concept of conscience.
The inability of those very high ranking churchmen who have entered the debate in recent times, very specifically the Archbishop of Dublin, has been to cast another unwelcome shadow across the discussion. It has been to trample even more on what I said was a significant development in modern theology, a significant development in the relationship between Church and State and a very powerful contribution to the Forum when it was held, that is, the acceptance of the notion of informed conscience with all its implications, that even if one felt that one was right one did not have the right to trample on the beliefs of others who in turn had come to the opinion that their beliefs were what they wanted to hold, that what they believed was for them a conscientious position.
The longer and the vaguer that this debate will be we will have it, as I said, informed by inaccuracy and by unhelpful heat; but we will also have it informed by ever more temptations to those whose authority is not based strictly on democracy to interfere in a bullying way in the relationship between Church and State. It is in the interests of everybody to have this debate focussed, to have a period of time and then to go to the people and let the case for reforming the Constitution stand, let it be argued against and let the people make up their mind. If I was not to take that viewpoint, if I was to put myself in the position of the people who argue the other way — wait for a majority in favour, wait for all agreement within the political parties you are likely to compound the evasive character of Irish political representation even more. If the individual politicians, many of whom do not want to discuss this issue — obviously I am not talking here to the exceptions — if they do not want to discuss it how less likely is it to find itself being chosen by a political party as the main element of their approach to the public? You are simply putting barriers upon barriers between the resolution of this matter and the people's choice.
All academic, you might say. Is it not a matter of when we will change the law? It is not academic because standing in the background, waiting for resolution of this matter, are the tens of thousands of people affected. They have the prospect of saying "Sometime in the lifetime of this Government may be we can hope for this issue to be addressed at last". Then it appears that their hopes fade and they cast an eye on another Government or on several Governments in the future and say they are left with the empty promise that at some time in the future, when Irish parties have all agreed, when the politicians within those parties have discovered their courage and when there is apparently a public majority, at that stage their problems, which are real now, which are being experienced by the adult members of families that have experienced marital breakdown and their children, everything is deferred by way of resolution to these.
Then comes back the argument: we can offer you nullity in the short term. This is a curious one because it would appear in the arguments of those who make the case for either an expanded concept of nullity — indeed it would be very hard to know what that might be, given what nullity means at the present time — but, leaving the temptation to pursue that one aside, we move on to the question of how inappropriate it would be to move the procedures of nullity into the area of civil law. Of course, nullity tells you something very interesting. The people who argue for nullity have a very interesting assumption in their approach. It is that it is all right to address the question of marital breakdown, but in a very remote way. It has been described by a writer elsewhere as a curiously medieval approach. It is that, rather than look at the strains of marital breakdown at the present time, the inadequacies of the civil law or the constitutional impediments, you go one better and you stretch back in the lives and the experiences of people and you say "Well, your marriage was not a marriage after all", ignoring the existence of children. Once again the people who are against divorce on the basis of its impact on the children seem not to want to consider for a moment the curious kind of questioning that children might put to themselves as to being told that their parents were really a figment of their imagination in the terms of the law in relation to marriage. This is presumed to have no effect whatsoever but it is assumed automatically that the existence of civil divorce will send the same children into a downward spiral of disorganisation. You can see what I mean by the phrase that it is a curiously medieval view of law in relation to the unions that constitute marriage in this country.
In the case of nullity, sitting side by side with the absence of civil provision, we have the long catalogue of Irish solutions to what is in fact a world problem, the whole notion of Lourdes marriages, marriages dissolved abroad, marriages half cancelled, ones that are half alive, ones that are half recognised. Occasionally these surface, not usually in the form of a discussion about the confusion, the mockery it makes of the law or indeed of the personal and social distress it causes, but of the property implications that it creates. It creates those on occassion. So, we are now in the position, therefore, that we will have to decide on that, to see how useful it is on the one hand as the arguments against having a constitutional referendum put it — waiting for the consensus and nullity in the short term. We can come back to those, but the public should have an opportunity of evaluating those arguments and evaluating them soon rather than later.
The report of the joint committee — at this stage I am paying nothing but compliments to it and to every member who worked in it — contained in chapter 7, 8, 29, summarised on page 120 says:
A referendum should be held in relation to the question whether the Oireachtas should be empowered to introduce divorce legislation.
Straight and simple — the discussion on the form, the nature, the extent, the consequences, the process of divorce is left aside from that recommendation. It is just no more, no less than to remove the constitutional inhibition.
Another preliminary question arises here. You have to address both the case for and against removing the inhibition as per the recommendation of the joint committee but you can hardly do so without looking at that to which it proposes the amendment would be directed. Again I would ask those who want to defer the referendum to seriously consider the constitutional inhibition, which itself is the outcome of a particular moment of social history, a particular set of assumptions concerning the family and certain social and economic characteristics which prevailed at that time. Do those same conditions prevail? Is it that this suggestion of a referendum is redundant or unnecessary because the circumstances have remained the same? To give credit to every Member who has spoken from any side in this debate so far, I do not think anybody has suggested that they have.
Circumstances have changed in a great number of ways. The concept of the family has changed. It has changed for a great number of reasons. In relation to the family it has shed a great deal of the functions it had in the thirties to other institutions and agencies. It is hardly likely the same kind of agent of socialisation now in the eighties that it was 50 years ago. Some other agencies provide now even in the realm of education, health and in relation to the normal satisfactions and preparations for life that a family receives. These have all changed and changed radically. As well as that, with changes in the social structure itself, including changed assumptions concerning the position of women, their participation in society and so forth, other changes have been fed into the context.
Now, to some extent, we are left here with a problem. Perhaps you could say, taking all of what I have said so far, that what you are dealing with is simple urban modernity versus some kind of saved rural past. With the greatest respect in the world, even in the thirties there had been a long history of marital breakdown in rural Ireland. It had been effected very much through that legal measure known as the boat, where people went away for very long periods and returned occasionally and many women reared their children without the presence of a father. One can look at the statistics contained in the Scully report in the sixties and others and you can see the large number of women who were the heads of households and small farms, not only widows but deserted wives.
One can take a more modern indicator, the number of people who are receiving deserted wives assistance. But perhaps the real measure is the number of those who would like to apply for it, including, therefore, those who have been refused or those who have not yet moved themselves to accept the reality that their partners have left and are not coming back, and certainly not assuming a position in running a viable union. There is the assumption in it which is perhaps too little stated: what is a good marriage? The committee decided not to put that in their terms of reference, and wisely so. Indeed, how would you answer the question? But certainly in the arguments made against the referendum on divorce there is to me surfacing every now and again, however tacitly, the suggestion that anything that sticks together, no matter what it is like, is better than anything that is chosen be it a second union, a third union or a fourth union. You have to deal with that assumption too. It is an indication of modern life and not necessarily an indication of any social decay that people should want from their marriages much more than the people might have wanted in previous ages.
Marriage has many functions. It can deal with the reproduction of children, a point that has not been under-emphasised either in Irish social practice or in the theology that has sustained it. It can deal with the transfer of property. It can equally deal with the whole question of providing the context for an emotionally valuable and enriching relationship between people. Indeed, the whole discussion in the sixties in Roman Catholic theology concentrated on restoring that last purpose of marriage to an appropriate position within marriage in general. You have in the opposition to the referendum an attempt to turn back the clock to something that is not real or documented but something that is quasifictional and something that might have been more barbaric, more limiting, more miserable than people are willing to accord.
I remember reading a book once on these traditional marriages which are supposed to have been attacked by the availability of divorce and one comment made on them was that they were not indeed the rich things that people suggested. One researcher has written a book that is methodologically not very acceptable perhaps but has some insights — Nancy Sheppard-Hughes's book on Kerry in which she refers to the case of a husband and wife and the woman in the interview says "He was a good man, but a cold man". She discussed visiting him in the hospital and she said "You were very good but I wish things had been better between us." She describes on another occasion a couple setting out, a taxi-driver and his midwife nurse wife as she headed out to deliver another baby, and they are uncomfortable until they switch on the radio in the car and then they are all right. What were they going to say to each other? I wonder about the wonderful communication, the ideal which was contained in many of these early marriages to which now all marriage, thousands more of them, are being compared as a standard. I am not judging them. I would not dream of taking the examples that I have just cited and generalising from them. I have just said that they are insightful in their own way as to whether these marriages sustained by a constitutional impediment to divorce were warm, loving, wonderful things all the time to all the people who lived in them. I would just rest my case on that. I suspect that they were not such a source of undiluted joy as the opponents of divorce would suggest.
The Committee on Marital Breakdown was formed to address itself to a problem. There is a problem located in contemporary Irish society, a society that is not the society of the thirties. It is very different in so far as that the means by which people make their living now are very much changed. There has been a massive shift from agriculture into industry and services. The population is now since 1971 by a majority an urban population, a point which has escaped many people and which creates in its non-recognition its own peculiar problems, because very often when we deal with the problems contributed to by an urban society we bring a rural, idealogical and a past-oriented mode of analysis to bear on those problems.
It also, as I say, is a society that has very many changed attitudes in relation to participation in the workforce, equality, the relationship between parents and children and so forth. You have to judge the committee's recommendation, this principal one that I have decided to home in on, the question that there should be a constitutional referendum, in the context of those modern conditions. At the end of the day what we have to decide here is what will best address that problem, no more or no less.
Now, of course, the previous speakers in this debate have made their case — and I will not weary Senators further on it — for there being an all-party agreement or a consensus on the implementation of that section of the report. The real test is what effect will it have on the lives of those affected. The committee in its own way goes much further than anything that I have said so far in stressing the new context in which our discussion is taking place. It mentions the personal factors and the environmental factors that surround marriage now. It addresses itself to the changed character of these and it is a welcome change in many respects from the previous thundering suggestions that we were living, as these cyclical theories of history used suggest, in some stage of the collapse of civilisation.
People who want to have either an end put to something that has not worked for them or people who want to have a second or another union recognised are not really interested in contributing to the collapse of civilisation. They are interested in the relationship that exists between them and other people, between the relationship that exists between these new unions and their children, in their relationship with the law, their relationships with society and so on. They want, if you like, to remove a stigma and a deviancy label from their new circumstances. That is what they are aiming at and it is to these aims that they ask us to respond, not to say that we want to change Irish life overnight.
This raises a question, then, as to what we should do. What we are in danger of doing, to my mind is avoiding the issue. The committee, in a way, and the discussion that surrounded the work of the committee, sometimes helpful discussion, sometimes unhelpful discussion and sometimes interventions from within the committee perhaps on occasion, — I would stress by individual minority members of the committee — were singularly unhelpful when people with who knows what motivation, with who knows what degree of sincerity, I would add too, decided to deliver views that were what we might call high traditional: that is they could only be encountered by those who moved to a very high point of the society or civilisation and who are on a special line to some special source of authority.
They are entitled to their opinion. I question the viability of it in a country that has so many young people, that is undergoing such change and that is in the European Community and has chosen to let the blinds fly up on its experiences in so many different ways in looking at the rest of the world. The committee in that debate stopped us ignoring the problem for at least a little while. But having decided not to ignore the problem we have yet to make sure that we do not fall into the trap of avoiding the implications of the discussion. Deferral and delay will be simply construed as avoidance. Of those who want to respond many genuinely believe that one can build on the framework of nullity something that will evolve eventually towards the changes in the civil law which will be possible contingent on the removal of the constitutional inhibition.
With the greatest respect I differ. One has only to reflect on what nullity is. Nullity is the recognition that what had been regarded as a union was never a union at all, no more and no less. The circumstances in which nullity would be granted are quite definite: incapacity of one kind or another; knowledge, information, coercion — one can discuss these. They are an appropriate discussion, internal to canon law procedures. One has to contrast that with civil divorce where civil divorce has been available. It differs in a fundamental way from nullity. This is important to us in so far as it addresses itself to the circumstances of marital breakdown now. In that way some would say that it is a bit more honest. Some nullity decrees are granted, I think addressed to circumstances that are very genuine and that certainly could impress people. But many more nullity decrees are fictions, the projection of the requirements of a new arrangement backwards. In this rather bizzare situation that the circumstances of a union had not been present at the original contract, one can now go on and suggest: "Well, therefore, let us wipe the slate clean". One can build into this.
Like everything bogus in life it is more available to the rich than it is to the poor. Nullity has been available to those who are familiar, and who are able to engage those familiar, and I add those who are able to pay those familiar with the procedures, much more to the people with resources than to those without resources. It is a costly, socially discriminating, long, tedious and very bitter process. I do not want to delay the House by looking at the quality of the procedures in nullity cases and contrast those with civil legal changes. But I would not be impressed by those who tell me that the person concerned is met by a kind person; brought into a warm room, engaged in long chats, given a cup of tea; and that this negates my argument. That is not what I am talking about. I am saying that to achieve and sustain an argument for nullity one has to make very deep, real allegations or factual statements about the partner that are often painful and more painful, more shattering in many ways on the partner in question than what is usually said in the hearing of civil divorce cases.
There is the other question also that in the case of nullity hearings, as I understand it, the suggestion is that one begins with the assumption that it should not be granted. Therefore, one has to argue the case almost impeccably to suggest that one has a particular ground for seeking nullity. The civil law dealing with divorce starts on an entirely different basis. It addresses itself to the present circumstances of a union that is not working. It addresses itself to today and the immediate yesterday. It does not seek to find a flaw in the contract. It says: it did not work. None of us is perfect; many people have a view by which they look for less and they will last longer.
There are many people whose expectations are not met in marital unions. There are many people whose marriages come under appalling strain. Maybe under the forces of economic circumstances, unemployment, poverty or whatever, a marriage gets into difficulties or one of the partners develops an alcoholic problem. Does one go back then and say: "Well, I did not know that he had a propensity for alcohol when I married him". One cannot quote that for nullity. But it has wrecked a person's life. It has ruined the home. It is damaging the children. With the best will in the world one might try to do something about it; perhaps the partners separate; perhaps after a long period they decide that they want to try again.
I rarely ever preface anything I have to say in this House by saying "as a sociologist. . . " but I will reply to one assertion made here that once a person got a divorce he or she was not likely to marry again.
The fact is, whether people like it or not, the people who write about the family tell you that people try again, again, and again. If marriage does not work for them once, they are not put off. They set off again and they try again and again in the vast majority of cases. We should just bear that little cautionary note in mind.
In relation to the difference between nullity and the civil law, however, there is a straightforward question raised. It is that one is, after all, talking about the procedures available primarily of a denominational kind. How can one leave the Church-State connection and its basis as it affects the law intact if one decides to take the nullity provisions of one denomination and move them to the centre of the civil law in a State that at this very time is debating how to move forward towards a conception of transcendent morality of some kind or transcendent social systems and cultural systems that might end the conflict on this island? At times it is believed that we should live in a pluralist society. How can one without a change? Let us not judge it whether it is positive or negative.
There are people who would like to see the procedures, the canon law of one denomination enshrined and become the law of the State. But there is a price to be paid for that. I believe that at present popularly in Ireland there is much less desire for people to see the specific sustenance of one tradition, one set of orientations towards marriage enshrined in the civil law than people might believe. On the one hand people want to have the right to hold on to what they believe in. They are right in that, but they are equally not showing the enthusiasm that politicians sometimes portray to have their version of their faith and its implications in civil law imposed as the principal one on this island. People no longer in a majority way want that. There is a tiny minority of people who seek that. When we discussed this matter indirectly in the 1970s Mr. Justice Costello, then Attorney General, seemed to see some merit in the approach against which I have argued. I found this very strange at the time, given his distinguished training and practice in Irish legal circles, because I felt that it was available to anybody at a superficial level to notice that there was a fundamental difference in the procedures of nullity and the procedures of civil divorce. Beyond that, there were other implications which would have to be teased out. But he must have formed his opinion knowing that there were definite social assumptions that seemed to prefer it and sustain it as a preferred option. I suspect that the social assumption that argued in favour of it then as an option was that you could appear to get away with it and you could not appear to get away with civil divorce.
You have to be better than that. The fact of the matter is that the social assumptions of nullity — I have described them already: they have been the subject of radio drama as the family met together to decide on what it meant to be obliterated as the marriage of their parents was dissolved. There is a curiously effervescent quality to it all: one day we were married and had children, then it was dissolved. But they are there as some kind of consequential alteration of the dissolution. There are the circumstances in which nullity is granted and which I have covered. There are the circumstances which would be available, correct matters for a church to debate, correct matters to be discussed as people want to up-date their cannon law. The procedures of it can be discussed also, I presume, although I have found from debates on the question of nullity and divorce that people are not so sure about the basis for decisions on the different criteria. Sometimes they appear to work: other times they do not appear to work. The only thing we know about them is that the relative outcome is better — you have a better chance, the higher up you go in the social scale, the more aware you are and the more money you have to get a proper opinion.
In relation to civil divorce, it is obviously when the constitutional referendum has been held and after the decision that the debate would take place on the circumstances in which divorce should be granted. But like everything else in life we tend to make all of this a great deal more emotional then it is. In the history of marriage, family and unions, all over the world, in different cultures, in different times, there has been a minority of people who have been able to pick one partner and with that partner construct a single household which has met all of their needs through different generations.
One of the great and powerful props to the family was the existence of forms of meeting that satisfaction elsewhere. There are those who would argue in the history of extra-marital relationships and the history of prostitution that it has had, an indirect consequence occasionally, of sustaining many a "fine marriage". Equally, I suspect that the notion of a marriage once and for all irrevocable, was closely related to the transmission of property in society. It enabled the transmission or property, usually in the male line, to take place in a very orderly way. But today people are getting married and people are under pressure. Many of these people are not people who are less than anyone else in society. In many cases — this is an important point to bear in mind — they are people who ask more from their unions than many of the people who suffer on in what is, in many cases, a less than fulfilling union. They are also people who are victims of circumstances over which they have little control. What do you do in the situation where a partner changes your whole relationship by unilateral actions that change the whole basis of the relationship?
In all of this we must make a qualitative leap past the hypocrisy and the prejudices of our society, that we are superior or that we are different from anybody else. What the availability of civil divorce does is that it acknowledges the fundamental humanness of people, that in looking for a union they want it to work; they have hopes from it. Circumstances change; it turns from anything positive or rewarding into something that is bitter and often corrosive; something that in many ways drags down the health of the partners. It changes them and it affects their children and so on. They do not want to be told this is a bad dream; you were really having a dream all the time, you were not married. They want to know what it is to hear that this unfortunate phase in their lives is over. They seek finality, they seek an end to something that simply did not work, that had all the consequences that I speak of.
They also seek the freedom to live as full participating citizens before the law, before the social welfare codes, before every aspect of the civil and administrative law, as full citizens by enjoying the freedom to have a late union recognised properly by the State. It is an extraordinary position for a State to say, you will have one shot at it and if it does not work, well, tough luck. That has implications for the first union and for the later ones. Those who argue about the first one will say to you, that as long as those walls are there there will be a greater incentive to make it all work. There will be a greater atmosphere of stability. But is there not a price to be paid for all that? Is it not a rather miserable view of a union at the end of the day that you have to create an open prison of marriage by your constitutional impediment and your opposition to civil divorce law, that you have to lock the people into it in such a way that they are stuck? They make it work; it is better than anything else, with the deceits, the social evasions, the appalling dishonesties that it gives rise to outside of marriage.
I am not describing the majority of marriages when I say that marriages fail. A great majority of them do work. I am not arguing against marriage — far from it. I am not arguing against long, loving relationships that will go on for several decades — good luck to all of them; they have nothing but my admiration. But I am saying that it is a hell of an assumption to say that if you manage to be running one of these models, everybody else has to do the same. People's circumstances differ. There are people who differ in relation to the way that the social and economic structure of society impinges on them. We know this for a whole series of reasons. Are they to be locked into relationships, to be precluded from having certain options on the basis that we do not want to recognise their experiences?
In many ways the willingness or unwillingness to discuss the holding of a referendum and the bringing in of changes in the law on civil divorce is an expression also of the relationship between majorities and minorities. There is this assumption which leans on the political, that what you are dealing with are the rights of the minority. The majority is suspected of being conservative and politicians always suspect that their majorities are more conservative than they are in reality, that you cannot move to meet the needs of a minority. It is a degradation of the political process when rights of minorities are not recognised in this way. This is not a crude relationship — the establishment of the relationship between majorities and minorities in the matter of rights. It is not a matter of acceding to demands. It is a matter of the way the majority handles a minority experience with it.
For example, in relation to societies that exploit people it is not often only the facts of the structural exploitation that are important but the quality of the relationships. These have to be negotiated. The concept of democracy is only crudely and improperly stated if it asserts majority rule. Democracy is about the negotiated relationship between people who take decisions, some of whom are in a majority and whose view prevails and some of whom are in a minority and whose view does not prevail. Having won the vote, the head count of the orthodox conservative versus the rest, you have no right to trample on the aspirations and on the needs of those who are in a minority.
I have said that the recommendation contained in the report that we should have a referendum should be speedily implemented for other reasons as well. This has been covered by other speakers but I would like to make one short statement and that is that it drags the law into disrepute. You cannot look at the panoply of provisions we have at present and suggest that they are anything other than a mockery of what the law should be. They reflect ingenuity in some cases. People advise each other that if you go about it in this particular way you may qualify under this provision. There is the whole notion about the State's attitude towards foreign divorces, for example. In the end my own training and orientation towards this problem is primarily influenced by the social circumstances of (a) the absence of the possibility of divorce and (b) the social circumstances of there being such a possibility available in Irish civil law. I am convinced that you need the latter for a number of reasons.
Quietly I think we should assess some of the arguments for and against these positions. It has been argued that you really do not need it, that you can live with the availability of annulment. I have said sufficient on that. It has been argued equally in relation to its effect on the children, the people who are the spectators of marital breakdown, of divorce proceedings, of nullity proceedings. They are the participants in the consequences of such arrangements as are being made. I might say in passing the constitutional position as to their participation in all of these proceedings and many others is far less humane than anyone should desire. The concept of children having rights of their own needs to be vindicated and indeed vindicated in a constitutional way. We have the position of the competing status of different statements.
Against divorce, it is suggested that the availability of divorce itself will impact on children's welfare. I have two things to say to that. Where is the evidence? The evidence you are looking for is comparative. You have to say where are you able to show that it has had such an effect on children. There is no point in taking two separate sets of facts and saying that where divorce was available you had the following number of children in institutional care. That is like saying there is a relationship between hay and rain. It is a meaningless kind of comparison. You listen to it all the time on this. For example, is it not much easier to show statistically and every other way that there is a relationship between the diminished circumstances of children and marital breakdown. Before you come as far as your option of divorce or nullity or whatever you want, if you are living in the circumstances of marital breakdown, it is that that affects children. Then you go on and ask yourself the careful unemotive question as to which has, given the evidence, impacted most on the welfare of children, their perceptions, their general welfare, their whole development? Is it the fact that they were locked into unions that were unhappy, unions that had ceased to exist emotionally and every way or where the parents had decided that they could no longer live together and had moved on to form another union?
It would be interesting to ask the children. Which can they remember? Which has the worst impact on a child, a long memory of an unhappy home or a memory of a household that was disassembled and another union that was reassembled. I am not going to make any absolute statements. The people who have the answers on all of this are claiming an absolutism. We are speaking for the children. I say that the evidence is not there to support them. The evidence is in the other direction. Children's welfare, their development, their whole process of socialisation is more affected by the quality of the relationships than it is by whether or not daddy or mammy had a particular kind of union or another. We have to look at these questions very carefully in relation to the question of the welfare of children.
There is another point. A woman came to my clinic a few months ago and said it would be very unfair to the existing spouse. In relation to people who come to talk to me about this, it is not representative and I would not dream of attaching any importance to it. People come to tell you the things that you want to hear or sometimes brave people come to tell you the things that you do not want to hear. The truth of the matter was that she was very much in a minority of those who represented opinions to me on this subject. She had the view that maybe it is unfair to the existing spouse. That has to be evaluated too. Suppose, for example, the conditions of marital breakdown apply, is that not unfair to the existing spouse or both of them but particularly in so far as the conditions of breakdown are initiated by one side of the relationship — gross marital infidelity, absence of economic security provision, attitudes of one kind or another, any kind of violence, etc? Is it more proper to continue to suffer there with that union intact and himself — as they would say in the story — running wild?
There is in such a notion the concept of the heroic suffering Irish wife. I believe that anyone who listens to women in Ireland today know that they have rejected that model for themselves. It has an elaborated theological existence. Pray that things will be all right. Prayer is a good thing and it is not my business to evaluate its efficacy. The fact of the matter is, I suspect, that this view of the long suffering partner at home in a union that has been protected not only by God, the Roman Catholic Church, Mr. de Valera and his constitution but now by the Irish State and a majority of the Irish legislators is poor comfort to somebody who wanted a little more from marriage.
Equally in relation to the effect on the existing spouse there is the notion that in the availability of divorce there is always the possibility of another more satisfactory union. There is the knowledge that actions initiated by the other partner can have a set of consequences that do not place you in the role of victim but to which you can respond. You can invoke the law as something that oppresses you. In the availability of civil legal divorce there is the possibility that the law can assist you in adjusting your relationship both to the other partner and to society. Is there not the possibility of drawing a logical hypothesis from that that the very existence of civil legal divorce, far from making more precarious the existing spouse can, in fact, in many ways serve as a condition which makes it in the interest of both partners to have a better relationship within marriage?
There is one other simple and final notion. William Duncan in his book addressed this notion at the end of the day when all the others had failed. I am running out of patience with this one. It is that the country cannot afford divorce, the idea being that we will not be able to pay the gardaí, the teachers, the nurses and everybody else if divorce comes in, we will be so busy handing out assistance to the children of the new divorced people etc. The mind boggles sometimes at these structures that are set up. To answer it, there is a preliminary case as to whether or not it is a right. I believe it is a right and a civil right I justify in so far as, where there is damaged participation socially, economically, legally and culturally in the society, it should be available. I am not put off by the suggestion that you look to the human rights codes and you will find that it is not reflected in the different international codes that exist. It is not an answer. Why is it not an answer? Because international codes themselves have been historically minimal responses to certain conditions. The example of course is the influences even on the United Nations charter and others; its response historically to the conditions in the gas chambers, in the death camps of the Second World War, the conception in human terms that we had sunk as humanists to a very low level and we should respond and have a condition of human rights. We did not evolve to the point where we wanted for example to accept it as a human right to eat and address ourselves to the question of famine. Famine is only beginning now to jog us in a longer haul towards acknowledging what we rather quickly acknowledged in relation to the circumstances at the end of World War II, as well as the question whether it is a need and if it is a need whether the State should both legislate and provide for it.
There is another more basic and fundamental argument that can be made, whether or not you have the existence of civil legal divorce, you have the problem of both the partners and the children affected by marital breakdown, they have to be assisted by the State. Can it not be more honestly handled that you would meet all of these needs when you have a proper legal framework to do so rather than having a whole plethora of possible responses, all responding in different ways to different degrees of destitution, different degrees of poverty within individual families. In many ways the whole argument, and I will conclude on this, is that the Committee on Marital Breakdown performed a valuable task in drawing our attention to some short term things that can be done and that should be done. For example, I would have liked to have seen a longer and more elaborated discussion on the whole question of emotional and sexual education for marriage. The whole notion of education counselling, mediation and so on are there. There are some specific proposals as to the age of marriage and there are comments on the existing law. What stands out in it is the short, terse statement that after its long, much published deliberations the committee said that a referendum should be held in relation to the question whether the Oireachtas should be empowered to introduce divorce legislation. We should respond to that by having the referendum and by having it in the lifetime of this Government.
I do not want to take from anything I have said so far by going back to the point that Senator Seán O'Leary made that there are divisions within the Labour Party and divisions within all parties. With respect for my distinguished and good friend, Senator O'Leary, this is a little cheap. The fact is that all ten Senators in this House will be voting in favour of the formulation of words which we had already decided upon, that is that we want the referendum in the lifetime of this Government. As a party we will be continuing a campaign, with which, I am proud to say, as Chairman of the Labour Party, the Labour Party has been associated right from the beginning, on the question of marital breakdown. It is my problem and the Labour Party's problem as how we deal with the odd few people, how we listen to those people, as we have to, who have different views or have reservations. The position of our party is one that is unequivocal at one conference after another. It is not that we want to lead the gallop down some moral decline in Ireland. Our party is older than the other parties here in its commitment towards order and in a commitment towards the quality of law. What we want is to address ourselves to a human problem. Unless we establish an outer point for the debate, unless we establish a date there will be a long, vague, badly informed debate. It will be bitter and it will involve even more. Remember, as we seek to establish some conditions of peace on this island, that every now and again there will be these unwelcome authoritarian, bullying statements from those who say that they operate from a higher level than ourselves.
I remember, shortly after coming in here, hearing one of the most honest Senators that I can recall speak, my namesake Senator Michael J. O'Higgins. He made what I felt was a brilliant contribution on family planning. He honestly stated that he felt the law of God took precedent over the law of man and that the civil law was derived from natural law and so on. He believed that. The merit of listening to him was that it was an interesting natural law view of legislation and law, Church and State in this island. What is much less satisfactory are those who do not have the courage to say that and even those who stand behind them such as the Archbishop I mentioned, who do not have the courage to openly say: "We want Catholic legislators to vote in a particular way" but who say something evasive and shoddy like this, as I can attest from attending seminars with Dr. McNamara, that: "Catholic legislators will be in no doubt as to where their duty lies". Behind this enigmatic statement lies another one: "Catholic legislators should be in no doubt as to what an informed Catholic conscience is".
If these statements are going to surface again and again in an open-ended debate while we look forward to some day when there will be a majority wanting to change the civil law to address the question of suffering people, adults and children, you are going to have an atmosphere created that is alienating them — and there is their business — from not only the Church but alienating them from the Legislature itself. We have a duty to respond to the needs of everybody who lives in this State. Our Constitution, whether we like it or not, in its fundamentals, gave us that obligation. What we need to do now is to seek to remove the impediment that is in that Constitution to allow us to develop the possibility and it is only a possibility because after the creation of that possibility, by the removal of the constitutional impediment, we then have to go on and calmly, unemotively debate the forms of divorce legislation that are suitable for this country. Our choices are to operate like that and respond or to ignore the problem, to avoid the problem, to evade the problem or to imagine that we can indulge ourselves in some kind of vague cloudy discussion about nullity that is tacitly and in an unwelcome way galloping us along towards an unacceptable and inappropriate and an unhelpful view of Church-State relations in this island.
