In continuation of what I was saying when we adjourned the debate on the last occasion, I would like to particularly welcome the proposal in chapter 8 that a comprehensive mediation service be established in order to help spouses to resolve the problems caused by marriage breakdown because the present adversarial court system, which is the only way open to those who find themselves in irretrievable marriage breakdown situations, by its very nature accentuates the conflict. That very often results in increased bitterness between spouses and causes further trauma and suffering——
Report of Joint Committee on Marriage Breakdown: Motion (Resumed).
The following motion was moved by Senator Dooge on 27 June 1985:
That Seanad Éireann welcomes the Report of the Joint Committee on Marriage Breakdown, urges the widest possible debate on its recommendations and calls on the Government to consider the holding of a Referendum on Article 41.3.2º of the Constitution."
Debate resumed on amendment No. 1:
To delete all words after "Government" and substitute the following:—
"to hold a referendum on Article 41.3.2º of the Constitution within the lifetime of the present Government".
—(Senator Ross.)
On a point of order, I notice that there is no Minister in the House. Is this an indication that there is no interest by the Government side in this debate?
We will put it on the record of the Seanad.
As a point of interest I would just like to have it on record that there is no Minister in the House.
It thus causes further trauma and suffering to the people involved and in particular to the children. The proposed mediation service in the report is clearly aimed at minimising that trauma and minimising the conflict. The proposal that trained social workers should be available, helping the spouses to resolve the differences between them in an atmosphere of——
I am sorry to interrupt the Senator, but just for the record of the House, I just want to note the arrival of the Minister to indicate the interest of the Government in this matter.
I am used to interruptions in the area where I live. I am glad to be able to speak at all. The other chamber of which I am a Member has not sat for three months.
The proposal to help spouses to resolve their differences in an atmosphere of confidentiality would certainly have the effect of lessening the trauma and the psychological effects on the children in that particularly tragic situation. The proposal that agreements thus reached could be noted and accepted by the proposed family tribunal would, of course, obviate for many couples the situation where they have to go through the harrowing experience of lengthy court procedures. In relation to the suggested family tribunal which has been dealt with at length by other people more competent than I am in legal affairs, I would simply welcome the suggestion. It seems almost too obvious to have to be stated that judges and lawyers who are dealing with people in such situations as marriage breakdown ought to have training and expertise in the psychological and social aspects of such cases. I just wonder why that aspect has not been dealt with long ago because it seems a very obvious one.
The fact that prior to the setting up of the Joint Committee on Marriage Breakdown no serious attempt had been made to minimise the effect of the present situation or the present system on those who have been affected, to my mind indicates a disgraceful neglect of this whole area by successive Governments. I would like, while I am speaking on this, to pay particular tribute to the AIM group who, since their foundation in 1972, have done so much to highlight the problems and of course the problems of inequality as between the spouses, male and female, in the whole area of marriage breakdown. I would like to pay tribute to them for the work they have done in highlighting this and in bringing it to the attention of the Government and of the public.
On the issue of judicial separation, which is dealt with in the report, I merely want to make one point. It is a point in relation to property rights which is on page 62 of the report, chapter 7, which states:
It is, however, decided law that a woman working in the home does not become entitled to any interest in the family home simply by reason of the work which she carries out therein as a wife, looking after the home and the family.
That state of affairs seems to be clearly in contravention of Article 41 (2) (1) and 2 (2) of the Irish Constitution, which states that the State recognises the role of the woman in the home and how that role is necessary for the common good — I am not quoting the exact words. Yet the Constitution recognises the role of the woman and the essential role that she plays by staying in the home and at the same time the law of the land penalises her when she does exactly what the Constitution says it values her for doing. It seems that there is an anomaly there that should have been corrected long ago.
I am pleased to note that the report proposes that there should be changes and that the law should recognise, in the case of property, the work that the woman does within the home, devoting herself, as many Irishwomen do and have done, to her family and to her home. Many of them have suffered the consequences when it came to marriage breakdown. It is outrageous that the years that have been spent by many women, who in some cases give up careers and give up jobs, in the eyes of the law of this State, count for nothing in spite of what is laid down in the Constitution.
I come now to the aspect of irretrievable marriage breakdown and the problems created by existing second relationships which have no legal status. There are, of course, those couples who have had annulments from the Catholic Church and who are living in a state of bigamy because their second marriages, although recognised by the Church are not recognised by the law of the land. There are those who have gone into second relationships having had a failed marriage and have formed permanent second relationships, with families, and have no legal status. It is significant that some members of the joint committee have stated that when they started the work of the committee they had very fixed viewpoints about laws relating to marriage breakdown, particularly to the indissolubility of marriage but have admitted, as examination of the problem went on and as they saw the complexity and the gravity of the problems arising, that their views had been somewhat modified. That points to the necessity for a much broader and wider debate on the report and the contents of the report so as to increase an understanding of the reality of the problem.
The setting up of the committee was widely welcomed for many reasons but the obvious reason was the urgent need to examine the whole area of marriage breakdown in the light of the increasing incidence and its implications, but also because it held out the hope that a potentially divisive and acrimonious debate could be averted. We have seen those debates in the last number of years in this House and in the other House and in the country. The committee's establishment gave hope that this area of social legislation could be discussed and that decisions could be reached without a repetition of that divisiveness. One of the Deputies who participated in the joint committee stated at one of the earlier verbal hearings that it was also her hope — I do not know if it is correct for me to quote a Deputy in this House? I will be guided by the Cathaoirleach in that.
It is not usual. If you want to make a passing reference——
I just wanted to quote from the minutes of evidence.
Certainly.
Deputy Geoghegan Quinn said:
The joint committee was founded on the basis that we did not want a repetition of divisiveness in our community over any referendum which might involve the introduction of divorce under any circumstances. As a member of the committee I am here to examine all aspects of marital breakdown. I accept that there is a major problem and we are here as mature politicians to try to find a solution to that problem.
That was the spirit in which the committee was set up and in which one would hope that the legislation could be framed.
I have come to the area of the breakdown of marriage and the setting up of second relationships. In the report on page 85 there is agreement about the problem which arises from this aspect. I want to quote the report in that area because it is important that we should know what the problem is when we are discussing the solutions. We, in Northern Ireland, have a little experience in such matters relating to other areas. On page 85, chapter 7, it is stated:
The Committee feels that it is inevitable in the context of the retention of the current constitutional position in relation to divorce that many adults, whose marriages have irretrievably broken down, will form stable permanent relationships with other men and women and, that the parties to such relationships and the children of such relationships, will continue to lack any adequate legal status and protection.
That is the problem. At the end of the previous paragraph, the report states:
For these reasons it is the view of the Committee that simple legislative reforms cannot adequately solve the problems at present experienced by parties to a relationship, one or both of whom is still legally married to another person.
There is agreement in the report about the problem, which is a very difficult one. But, at least, it is a sign of progress when an all-party committee of the Oireachtas has agreed on what the problem is. The next step is to find the right answer to the problem. Ideally, because of the potential divisiveness of this legislation it ought to be enacted by consensus. I agree with Senator O'Leary that if it is not possible to do it by consensus, at least it ought to be done — because of the strong feelings that Deputies and Senators of all parties have; it is clear that people in various parties differ — by free vote of the Oireachtas.
Whatever new laws are formed must be framed in order to give to the thousands involved adequate legal protection. We do not know the number of people involved because we do not have statistics. That is also pointed out in the report and it is an area which ought to be dealt with. In keeping with all that has been set out in previous chapters of the report it follows that any new laws should be framed in such a way that they give full protection to the family and to the institution of marriage and that the necessary changes do not lead to the much feared slippery slope which has resulted in other countries from such legislation.
We must acknowledge that there are fears that once you legislate for that particular problem you are opening the flood gates. People see what has happened in other countries and fear that we may be on the same slippery slope. Dr. Jack Dominian in his verbal submission to the joint committee put the position in a nutshell. He stated:
I repeat what I said earlier on that civil divorce or the law does not do very much one way or the other to increase or to prevent marital breakdown. Nevertheless, I think one also has to say that civil divorce is not particularly productive or creative in preventing marital breakdown.
It is important in dealing with legislation that it be taken in the context of the whole of the report and not just in isolation. He continues:
It is simply a civil facility. You have an opportunity here perhaps to make something in this country which both legislates for justice and also allows the country the benefit of enhancing prevention.
That ought to be the aim of those who are attempting to frame the legislation and those who are interested in helping them because many of the countries which have been quoted by people to the committee or which have been pointed to are countries where it has become a problem.
We can learn from the experience of other countries. We can learn from their mistakes. Any legislation in this country ought to have the purpose of enhancing prevention as well as giving justice to those who find themselves not protected by the law. Because of the obvious difficulties in finding the right legislation I think it is essential that, as a first step, the report should be very fully debated in both Houses and in the country as a whole. People have to be made aware of the complexities of the problem and of the need to deal with it, the reality on the ground and the need to have the legislation.
Fears have increased and confusion has been caused by reference to statistics from other countries. Often these statistics, depending on who is putting them forward, seem to lead to contradictory findings. In the interest of finding something which is really comparable to the position in this part of the island, I suggest that the obvious area which might be looked at is Northern Ireland where divorce legislation has operated for some considerable time. It would be worthwhile if statistics could be collated and research could be done in the area of Northern Ireland as to the effect of the availability of divorce legislation on the family and on the institution of marriage and on the social fabric there because we do, in both parts of Ireland, at least have the same type of ethos with regard to marriage and the family. Therefore, to my mind, it would be the only really comparable area at which we could look.
It would be unwise, because of the difficulties of framing this legislation and because of the need to have available that research and the results of that research, to put a time limit on the legislation. By the same token, I would like to add that it would be unwise and indeed irresponsible, to shelve it indefinitely. When I say not to put a time limit on it I am not saying "shelve it"; I am saying that it has to be very carefully drafted and that all avenues have to be explored so that we do not repeat the mistakes of other jurisdictions.
In relation to that, I was particularly struck, in reading the verbal submissions in the minutes of evidence, by an altercation between a member of the joint committee and a member of a group making a submission. The member of the joint committee asked the group who were making a submission, and who were opposed to any change in the present law, about a specific problem which arises because of the inadequacy of the present law. It is a problem which is increasing and which causes a great deal of suffering, particularly to young women who are deserted and whose husbands go off to other jurisdictions and set up families there and leave young women here for the rest of their lives in an intolerable position. The member of the group was very frank, very honest and very sincere and he simply said: "I am afraid I do not have any of the answers". It strikes me that we, as politicians and legislators, cannot afford that luxury of not having the answers. Pressure groups and interest groups are a very important part of our democracy and a very useful and good element in democracy, but at the end of the day it is the legislators who have to come up with the answers. Clearly, pressure groups will have conflicting and very often opposing views. The legislators have to come up with the answers and cannot escape from their obligations. Therefore, in view of the problem as stated on page 85, the legislators in this country must come up with the answer to that question which that witness really could not cope with and did not have to cope with; it is not part of his responsibility.
Because of the possibilities for divisiveness and for acrimony it is my feeling that the problem could best be dealt with, as I have already said, by an approach which sought a consensus, an approach which would allow for this greatest of human tragedies to be dealt with in a compassionate and caring way. I think there are few greater tragedies than that of two young people who set out with high hopes and high ideals and find themselves after a number of years in this most awful situation which none of them could have wished for of marriage breakdown, a failure of human relationships, or whatever you want to call it, and particularly the suffering that it causes for the children of the marriage. There are few human tragedies greater than that. I think therefore it should be approached in a compassionate and caring manner and that ideally it should be kept out of the field of party politics; it is far too serious and far too tragic a situation for that.
The corollary of this report is that new legislation has to be framed. It must be framed, as I have already said in the context of the whole area of the report, in the context of the reforms and excellent preventive measures which have been suggested in this report and which were dealt with earlier. The purpose of the legislation must be the protection of the family, the protection of marriage and the protection of the rights of those people whose marriages have irretrievably broken down and who find themselves not protected at this moment by the laws of the State. That ought to be the purpose of the legislation but I would hope that the effect of the legislation would be in the words of Jack Dominian "to enhance prevention and to provide justice".
It is, I suppose, a reflection of the complexities and the changes and the dramatic pace of change in Irish society that we have come within my adult life to the position where we must cope with problems such as these from a situation where the difficulties of breakdown in marriage, the problem of what people see as excessive family size and many of the other problems associated with changes in society did not arise or were not discussed. Other countries have adjusted to these problems over a period of 100 years, by and large in hand with or in tandem with the industrial revolution. It is a reflection of our society that we have been forced, by and large to confront these problems within the relatively short period of my adult life: that we have moved from being a society where these problems did not arise or were not discussed to a society where sometimes one could justifiably conclude that nothing else except problems connected with family life and related issues really penetrate the Irish psyche at all.
The report of course like anything as comprehensive as this, contains much that is good, much that is almost amusing in the delicacy of the choice of words in some cases — and I will refer to some of those later on — and also some quite clear, perhaps unnecessary but nevertheless clear avoiding of issues. It does of course contain all of these elements. I do not for one second address this criticism to the authors of the report; I address it to Irish society and to ourselves and to myself as a part of Irish society. It enshrines — I do not address this criticism to the authors of the report but to Irish society and to myself as a part of Irish Society — all of the rhetorical flourishes that we are much given to in this country about the sanctity of the family and the support of the family.
The second chapter is devoted to that. It is entitled: "Marriage and the Family — the Legal and Constitutional Position." That simply states what is written down already. When you read it, it is most impressive. We have the most highminded of ideals about the sanctity of the family. The trouble is that historically the high-minded commitment to the sanctity of the family has not been reflected in the day-to-day activities of Irish society or in our legislation. We attached enormous importance to the unity of the family all through the independence of the State and, at the same time, tolerated the emigration of one million children of these allegedly united Irish families because we failed to make the economic provision to enable them to stay here. We had until recently a doubtful housing record; and we still have inadequate educational facilities so that close to one quarter of our children still leave school at or before the age of 15. It is one of the myths of Irish society that there is universal, free, second level education. There may be a principle, another one of our noble principles, but a quarter of our children never gain access to that universal, free, second level education. In talking about the family in Irish society and the problems of family life and the difficulties that are now emerging, that have now become visible, we have to be careful not to get too carried away by our own rhetoric and to look in a reasonably dispassionate way. That would be as true of people on the left as of people on the right in Irish society.
I do not regard views on marriage breakdown as the touchstone of whether people are on the left or on the right in Irish society. It is one of the easier issues for people, particularly outside politics, to strike progressive postures about and one that they can do without any great threat to their own positions in society. Nevertheless, there are limits to our rhetoric and the courts have contributed to them by the extremely narrow definition of the family that the courts have chosen to take. Perhaps they are constrained by the Constitution. They interpret the Constitution as so constraining them, but it is a matter of regret that single parent families which have not sprung out of marriage are not regarded as families under the Irish Constitution.
Extended from that is the judgment of the Supreme Court which in the case of a child born outside wedlock virtually excludes the father from any rights in terms of custody or care of the child. It does so not on any sort of practical ground but on that most interesting of concepts, the natural law. I am not so sure if there is a difference between the natural law and the laws of nature. As a scientist, the one thing I know about the laws of nature is that we do not know any of them. All we have are useful hypotheses which we work with and which work for the time being but which are liable to be turned on their heads in five, ten or 20 years' time. There may be buried in some subterranean subconscious some natural law based on the way nature is ordered but since I, as a scientist have not found any laws of nature, I find the concept of natural law very difficult to relate to and particularly difficult to accept as the fundamental tenet on which people's rights about things like custody of children or about other things like family planning are to be judged, adjudicated upon and negatived if some people have their way.
In the section of the report on the protection of marriage the authors quote approvingly from Mr. Jack Dominian. He emphasised, in terms of protecting marriage, the need to emphasise relationships and the quality of relationships. I picked words from his quotation. He mentioned "relationship", "trust", "communication", "affection" and "understanding." In the sort of society being created in this country, which is increasingly that which we are told we must aspire to — a competitive society, a society based on individualism and a society based on the idea that it is up to myself to look after myself and that I should not expect anybody else to be concerned about me and I should not be expected to be too concerned about anybody else — they are the values that are becoming more and more the dominant values of Irish society. The emphasis is moving away from a sense of community, responsibility for individual problems, to a new canonisation of individual effort. If we make individual effort, individual rights and individual gratification of individual needs, which is what some of the apostles of the new right in this country would identify as the most fundamental change we need in this country, then most of the qualities of relationship that the committee identifies as being the qualities that enable people to develop strong, lasting, worthwhile relationships are being threatened. You cannot have trust between people in an individualistic society, where individualism is made the fundamental value of society. You cannot have communication where trust does not exist, and if you have no trust or communication you cannot have affection between people. If you have no trust, communication or affection you might as well forget about understanding.
The reason I emphasise this so much is because the quality of relationships is central to the quality of marriage and it is also central to the causes of marital breakdown. The sort of qualities that Jack Dominian so rightly identified are threatened not just by the competitive society we live in but by the increasing urbanisation which has characterised most of western society for the past 150 years and which has led to all sorts of traditional linkages and supports and underpinnings of people, not of values, laws or rules, which enable people to survive stress and economic deprivation as a united couple, being threatened. Because those values are threatened marriage has become less secure, though that is not the entire cause of it.
The committee go through some analysis of the cause of marital breakdown. They identify a number of factors under two headings, environmental and personal. A lot of what they say is worth being said. I am glad that an all-party committee of the two Houses of the Oireachtas identified the attitudes of the Churches to inter-Church marriages as a potential source of stress within marriage. A member of my family is involved very actively in inter-Church marriage affairs and his conclusion is that both of the great Churches in this country would seem to prefer a member of their Church to be married to a person who was not a practising Christian than to be married to one who was an active member of the other Church. It is much easier. You then have a nice cosy relationship. The idea of two equally committed Christians from two different traditions marrying causes enormous problems, not for Christianity but for the Churches who claim to speak Christianity. It can produce tensions and difficulties. The lack of a shared religious perspective can produce its own enormous tensions within marriage.
Going on into broader environmental issues there are interesting notes of disapproval in the report about some of the environmental factors that are identified as perhaps leading to more stressful relationships within marriage. The report refers to the development of birth regulations. This is an interestingly neutral way of describing family planning which does not really jump on one side or the other. Article 4.3.3. on page 24 of the report states:
Within the space of a few decades young people of all social classes have developed habits which are markedly different from those of one or two generations ago. Principal among these is felt to be the waning influence of parents and relatives whose views may not be taken into account in the choice of a future partner and are no longer in a position to arrange, strictly vet, and effectively disapprove of the choice of a future partner.
That is probably true but it would appear that the committee identify this as a possible cause of marital breakdown and therefore tend to enshrine a quite authoritarian and hierarchial view of how society in an ideal world ought to be modelled as being the way to eliminate some of these difficulties. I find that entirely unacceptable. One of the great improvements in the twentieth century is the increase and development in human freedom particularly the insistence by young people on the freedom to make choices for themselves about their own lives and futures. That has consequences in terms of personal responsibility as well but I would not like to see us moving back. I do not know if the committee intended it but there is a slightly disapproving note about the wording of this analysis here. It is also interesting to note a passing reference to the growing permissiveness of western society. I think the poor old permissive society has been blamed for more damage and destruction than even the great plagues of the middle ages. The permissive society is a reflection of something else and something more fundamental. It is not a cause of very much other than perhaps individual suffering on a grand scale. It is not a cause of the sort of changes that people identify, it is a symptom of those problems.
What strikes me is that in an analysis of environmental factors, which spreads over the best part of three pages, which may lead to marital breakdown, the committee devote three lines to the following: large scale unemployment, poor housing or inadequate financial resources. I find it quite astonishing that three factors as enormous as unemployment, housing and inadequate finance could be dealt with effectively in one line when all sorts of other things such as permissiveness and the changes in family authority structures and so on are analysed in detail. I respectfully suggest that the members of the committee could have put greater emphasis on such environmental factors as unemployment and perhaps reflect a little less of traditional disapproval of young people's ideas about the way society is organised.
I like the emphasis and the maturity of the analysis of the personal factors, the personal values and inadequacies that can lead to marital breakdown. At the risk of making an issue out of it, I think at some stage in terms of possible causes of marital breakdown the committee could have given some consideration to inadequacies in physical relationships particularly in a society which has shifted from being very repressive about sexuality to being almost excessively detached in a commercial way about sexuality. For many couples in Ireland who are having to cope with deepseated feelings of inadequacy and guilt on the one hand and with a sense that they are supposed to be liberated on the other, tensions can develop in a physical relationship that would have been unknown 30 or 40 years ago.
Finally, in talking about factors which lead to marital breakdown even though these things are implied and these things are referred to in passing, the public acknowledgement of marital breakdown — I want to emphasise this again because I have some suspicions that it is not so much that we have more marriages breaking down now as that people are now prepared to talk about the fact and take action about the fact that their marriages have broken down — one common characteristic is the increase in urbanisation which has resulted from economic development. The increase in urbanisation produces a number of things. It produces greater pressures on people. It isolates people from each other. It undermines family bonds and supports. It also does good things. It undermines hierarchical authority structures, it undermines the passing on of unquestioned values and principles because they happen to be those that are passed on.
That is very good but in doing that urbanisation and industrial development have also deprived people of the personal supports that went with the traditional structure of society. Those personal supports did not necessarily make for successful marriages but they may well have made for marriages staying together that in a different environment would have fallen asunder. I do not think you can legislate, regulate or impose love on people. It is one of the great myths of much of the argument about marital breakdown and also about divorce in Ireland that somehow by making it tough you can somehow make people love each other more. There is an extraordinary distortion of logic involved in that.
There is no doubt that marital breakdown is a part of the realities of Irish society today. I regret that a number of interesting statistical studies that could have been done were not done. It may be that the committees were not provided with adequate resources. We could do with fairly comprehensive statistics in Ireland, not just on the numbers of people who are actually living apart but on people's assessment of how often they talk seriously to their partner in life, how often they talk to their children and a number of other indices of marital breakdown. Marriages do not break down when people leave the house or the bed they are sharing and go and live in two separate places. Marriages break down a long time before that. What we need to do is to identify honestly the figures about marital breakdown. I am reminded of the way we fail to identify the suicide figures because we are very charitable and because the consequences of suicide being registered might well be difficulties as regards Christian burial. We do not know how many people commit suicide because we do not want to call it suicide. We might have the same problem with marital breakdown.
I have heard people from all three parties say that the biggest recurrent problem they are running into is marriages breaking down. I do not believe therefore that 70,000 people or 35,000 couples is an adequate figure to describe the scale of the problem that I hear of from people who are best qualified to judge, the practising professional politicians. It is a regrettable fact that the report has to talk about the problem and not be able to put any scale to the problem. One of the things that Irish society badly needs is a measure of the intensity of the problem. That would do more than anything else to concentrate people's minds on the need for fairly dramatic responses to that problem and perhaps get them beyond the hysteria of some of their leaders who would confuse them with misleading information.
There is no doubt that marital breakdown exists. I would like to enter a small caveat here about the perception of marital breakdown as something new. There is a case to be made that it has always existed but that people chose or were compelled by either their own convictions or by convention or financial needs to maintain the image of unity within marriage. There is an image of the Irish marriage which, although people do not quite say that they approve of it, generally tend to disapprove of anything that does not reflect that sort of thing, and that is of the dominant, virile, Irish father and the dutiful mother rearing as many children as the dominant, virile Irish father can beget. There is still such in law, in many cases, as the head of the household and by implication there can only be one head and the other side of the partnership must, therefore, be the submissive non-earning partner. Even more offensive than this model is the image of the submissive mother who connives to get her own way, who connives by methods that are very close to being dishonest. This is an image that comes up in a lot of Irish literature and a lot of even the stories of Frank O'Connor about the relationship between men and women in Irish marriage. The mother effectively accepts that the father is the head and then connives to get around his headship to get her own way. That, of course is so far from Jack Dominian's image of relationships of trust, communication and affection and implied in all of that equality as to defy description.
Therefore I would suggest that perhaps it is not so much either in this society or in other societies that marital breakdown has dramatically increased as that people have chosen and are now choosing because of some of the factors that were identified earlier in the report to take a different line of action when their marriages come to this sorry state. Women in particular are no longer prepared to tolerate the subordinate role, the handmaid role, the minder of children role, while the man plays the real life role, has the real job, has the real career outside the home. Those sort of relationships can work and often do but when they are carried in to the whole area of life where there is no real need for communication or affection, trust, support, or recognition of equality within the marriage, then perhaps women are beginning to insist that this is no longer acceptable and many men coached in traditional perceptions of marriage are not able to accept the new perception that women have of themselves, and hence marriages break down.
The basic fact is that that type of problem did probably always exist and there is indeed some evidence — and the Minister of State in particular will know what I am talking about — that male attitudes have not changed nearly as dramatically as you might imagine. Having watched the amount of sniggering that went on in various places including in some circumstances in this House when that unfortunate girl who was a victim of sexual harassment was discussed on television, I have to say that in any area where there was predominantly male company this was not seen in terms of a tragedy for a young lady, it was seen as a giggle and a joke. I am not by any means either narrowminded or puritanical and I do not think anything in my record would suggest that but I found a lot of male attitudes to what was to my mind a considerable victory for a young girl, quite offensive and if it is extended into people's general lifestyles we have a long way to go before real communication, trust and affection will be possible between men and women. Therefore, perhaps a lot of our marital breakdown is no more than a long-standing problem finally being addressed by the victims of that problem.
If we do have marital breakdown how do we remedy it? The first thing to be said is that the real remedy to marital breakdown lies in prevention and it is a regrettable fact that that aspect of the problem of marital breakdown which is the juiciest in terms of politics and in terms of headlines is the one which gets most of the notice, that is divorce, whereas the real problem is the human problem and the human suffering involved. It is easy to get headlines talking about divorce, it is very difficult to get headlines talking about trust and communication, affection and love. They are not the type of things that make news, they are not the type of things that create angry divisions in politics but they are the things that determine whether marriages are successful or unsuccessful.
Therefore, in terms of prevention the first thing must be the emphasis on personal development described so well by Jack Dominian to the committee. That means quite a different attitude in terms of schooling, not just in terms of a new subject because I am tired of schools being asked whenever there is a new fad that they must introduce a new subject. It is a question of what we do with the time that children spend in school. Are we prepared to reduce the amount of time they spend on those things that qualify them for jobs and are we prepared to spend far more time on those things that qualify them for living? Those things that qualify them for living are the type of values I have already mentioned three or four times — trust, responsibility, communication, affection and aspects like that. That would be a very fundamental change in the practicalities of our educational system.
The other area of prevention lies in the area of housing, of employment, family planning and indeed of one that is not addressed and needs to be addressed and to address it I will need to go backwards a little because one of the great new emphases in Irish society and indeed one of the founding principles of the European Community is what is called the free movement of labour. The free movement of labour and labour mobility is usually an objective to maximise the efficiency of our economies. The free movement of labour is people moving from one place to another. We would want to address ourselves to the disruptive effect of multiple moves on families, on their children and on the relationship between husbands and wives.
I just happened to be listening to a BBC programme this morning when I was driving up and they were talking about the fact that there are considerable numbers of job vacancies in the South of England and considerable numbers of people unemployed with the skills for those job vacancies in the North of England. The people will not move because of the dreadful housing problems that exist in the South of England. If you create the ideal situation in terms of the economic planners which is that if you get fairly flexible mobility you will get people moving down to do these jobs because the jobs are there, you do not provide housing for them and you immediately put large numbers of marriages under strain. When people lecture about the need for greater labour market mobility they would have to really, if they are in earnest about it, talk first of all about providing housing and also think through the consequences for society of disruption to family life of such a flexible labour market.
If prevention is not obviously successful then questions of mediation and counselling arise. I know the Minister of State who is here has some decisions taken and some proposals to make and I hope they are successful. The question of mediation and counselling is still in its infancy and I would have to say that while I know that the Catholic Marriage Advisory Council has been enormously successful in doing this, I believe that the lack of compassion that many people see in many of the more extreme outbursts of members of the Catholic Hierarchy cannot but do damage to the trust that couples in trouble are going to put in a group that titles itself Catholic. They would begin to wonder and quite justifiably whether they are being drawn into the snares of an organisation that, as it is represented by some of its spokespersons, is singularly lacking in compassion.
If mediation and counselling fail and obviously marriages have broken down irretrievably I do not believe there is some type of intermediate position you can land yourself into where you can say: "Right it is broken down but we will never legislate to recognise that fact in a way which ends your marriage, in a way which is satisfactory to your children, to your spouse and to yourself in that order." That is the order in which any legislation about marital dissolution should have its priorities — children, spouse and then the person seeking the dissolution.
Some of the documentation that I have received, from some of the groups most vocal in opposing marital breakdown, have produced quite imaginative legislative initiatives to try to give some type of legal protection to extra-marital relationships or extra-marital unions that are a consequence of previous marriages breaking down. The spectacle of a mushrooming of illicit unions, non-formalised in the eyes of the State and the Constitution, with large numbers of children of what can best be described at this stage as of a dubious status, with one or other of the partners of a previous relationship perhaps being victimised by the new relationship, with single-parent families maintaining the current indefinite status, is far more likely to undermine respect for the family and the institution of marriage than any properly regulated legislation which would make provision for the dissolution of failed marriages.
As has sadly often been the case in recent times my Church, as I have called it often before here, has chosen to take a position which leads into convolutions of logic that are almost beyond description. Thus, my Church, because it is no longer in a position to insist as it often did in the past, will not say any more that it is trying to impose Catholic teaching on a minority. Its record, unfortunately, is that when it could do so, it did so without a second thought, as did other Churches in the same position in many periods in history. There is no Church or society in a position to point a finger at other societies and say "your Church is worse than our Church." It is a sad fact that all the Churches, when they had the power, tended to do what any powerful group did when it was not regulated and that is abuse that power.
My Church has said, "No, we are not talking about imposing Catholic teaching on people; we are talking about public morality; we are talking about the common good." The interesting thing is that even though they are not talking about Church teaching or the teachings of the Catholic Church they still tell Catholic legislators, like myself and almost all the Members of this House, that even though it is not Catholic teaching we are talking about, we still must do what they tell us because it is a matter they have spoken on. Basically, one does not have Catholic morality being imposed, but one does have a Catholic definition of the duties of a Catholic legislator imposed, irrespective of the views of minorities in our society.
I find it very difficult to believe that there is this extraordinary happy coincidence where the common good miraculously always happens to coincide with the moral teaching of the Roman Catholic Church, where, by some extraordinary coincidence, we do not have to impose the teaching of the Catholic Church on the minority, because we have taken ourselves off to an independent position to analyse the problem and have concluded that the common good coincides with the teaching of my Church. If this perception of the common good is as it is, then obviously the evidence is there from other societies. This is where people get themselves involved in quite dubious analysis.
First of all, we enter into the realm of sociology, not into the realm of faith or morals. We are talking about looking at trends in society and the interactions of different forces within society, drawing conclusions about the interaction between those forces, and then saying, "this is the common good and because I, a Catholic bishop, perhaps a qualified moralist, perhaps a qualified theologian, say that is the proper sociological analysis, therefore you as a Catholic must believe me that this is the proper sociological analysis". That is not only wrong in logic; it is wrong in any Christian terms of which I am aware. Being a bishop does not make a person more qualified to make a social analysis. Therefore, the usual phenomenon, that is identified is that in all countries where divorce has been introduced, there was an increasing level of divorce. The conclusion was reached that, therefore, divorce causes divorce. This sort of correlation, which ignores any attempt to prove a relationship, is nonsense. The more extreme example, to demonstrate how nonsensical it is, is the fact the during summertime the sales of ice cream goes up and drownings go up and, therefore, ice cream causes drownings. That is nonsense; it represents nothing. To suggest that because there is divorce in society the incidence of divorce is increased is absolute nonsense, unless one can prove that one causes the other, and can prove that the relaxing of an embargo on divorce somehow causes increased numbers of marriages to break down. Unless one can prove a cause and effect relationship then the entire suggestion is utter nonsense.
The reason why marital breakdown has increased in western society is not the introduction of divorce. It is the stress and strain of urbanisation, the increasing awareness of both partners of unwillingness — particularly of women — to tolerate an unjust burden of the hard side of marriage and also the sort of vulgar commercialism that has tainted western society with a materialism which makes terms like "sacrifice" unfashionable. It does not in any way spring from the existence of divorce per se. It is a bit much for us to be denouncing other countries — and I said this during the debate on the Family Planning Bill — as models of corruption and decadence. There are among them countries that are far more compassionate and caring in their social and housing programmes than we have ever been. Such countries look after the children of single parents far better than we have ever done. They look after the victims of marital breakdown and the victims of unemployment. It is arrogant of us to stand on our self righteous Irish Catholic heights and look down our noses at such people and say: “Because we do not have divorce and you do, we are a better society than you are”.
Perhaps we should not be talking at all because there is no moralist in this House, and there is no moralist in the other House. The Archbishop of Dublin has recently been on record as saying that he disapproved of unqualified people talking on these matters. The implication that only those who have some formal qualifications are entitled to pronounce on subjects of common interest is — whatever the Archbishop thinks of it — inherently fascist. The idea that somehow, because one does not have formal or approved qualifications, one is not competent or not entitled to speak is, to my mind, the roots of an élitist model of society which, if it is not fascist, is extremely authoritarian. It reflects the long-standing and well-known suspicion of my Church for political democracy.
As far as I am concerned, one cannot deal with the problem of marital breakdown without talking in terms of prevention, intervention and, finally, dissolution. Dissolution obviously means civil divorce for those who, having gone through all the other avenues, find no other remedy for themselves. If divorce is to be introduced — and I hope it will be soon — it is one part of a response. It is neither the best part of the response nor the one that we should rely on most. It is one necessary part of a jigsaw of human suffering that must fit together, if people are to escape from it, and if people who want to are allowed to escape from it, and if the innocent victims of many of these unsatisfactory marriages are to be given the proper and appropriate protection.
The issue that we will be addressing here in this House, as far as I am concerned, is no longer whether or not we should have divorce. It is a question of when we should have a referendum. One of the shameful things that I know and that every Member of this House knows is that the majority of the members of the Fine Gael Party, the vast majority if not all of the members of the Labour Party, most of the Independent members of both Houses and other groups, and a substantial number of members of the Fianna Fáil Party, believe that the constitutional prohibition on divorce is now an anachronism and is now an obstacle to compassionate legislation. The sad and tragic thing is that one major party, Fianna Fáil, is not prepared to allow its members even to speak and say what they think, which we all know they think and have heard them say on so many occasions. It is a tragedy for themselves. It is a tragedy for a party which has moved from being a republican party to being the bishop's party. It is a tragedy for me who has always had a considerable regard for the Fianna Fáil Party, that they would allow a matter of such enormous human suffering to become one of political convenience.
Given the risks of defeat in a referendum, if such a referendum is not held during the period of this Government it will not be held during the period of the most likely future Government. Therefore, I think that the issue needs to be put to the Irish people. If it can be put to the Irish people with the leadership and support of the two governing parties, and with the obvious lack of enthusiasm that certain large numbers of Fianna Fáil will show for taking the other side, and with the fact that numbers of them will be quietly in favour of it, and given the overwhelming evidence that is now available and the level of public concern on the issue, a referendum should be held sooner rather than later. Hence, we have the amendment that I have seconded here, which calls for a referendum on divorce during the lifetime of the present Government.
Early on in this debate much play was made of the fact that people with legal training played a dominant role in this committee. I can assure Senators that my contribution will enhance nothing as far as the legal side of it is concerned, because I have no legal training. I have the experience of being a married person. In the last two-and-a-half years since I became a Senator I also have become aware that there are marriage difficulties. I have been surprised at the number of marriage difficulties that seem to exist. Long ago — I do not know how far back that goes — when I was young the problem in Ireland seemed to be that we had late marriages, especially in farming where the farms were not handed over to the sons because the older people had to continue farming for a long time. The difficulty then was that children were growing up to old parents. Maybe that situation had drawbacks. Maybe when we were younger we laughed at the idea of made marriages and all the fun that seemed to be attached to them but marriages seemed to survive. Maybe there were difficulties that we never knew about. We certainly could not advocate made marriages now. Maybe the arrangement was not as bad as we thought it was.
Nowadays, we have the reverse. We have young people getting married very early in life. Indeed, it is something I will talk about later. It is very difficult for them to survive in marriage. I am not sure that our age for marriage at the moment is high enough, nor do I think the recommended age is high enough. If marriage is for life it certainly takes a lot of maturity to survive. For young people to have maturity is almost a contradiction in itself without belittling them. It takes a lot of calm reason to survive in marriage. Many people who are happily married think that there is no great difficulty if people are reasonable. They reason that difficulties arise in marriage because people are not reasonable, as they see it. They are not able to cope with the problems that arise.
My own Church — and I am sure other Churches also — have insisted that people should attend pre-marriage courses. Couples must give at least three months' notice of their marriages. I happened to be having lunch with a few local priests when that decision was announced. I came up with the brilliant idea that this was going to cause a problem for girls who were pregnant and who wanted to get married. Of course, it was rightly pointed out to me by one of the priests that these problems were obviously the problems that they should deal with and that perhaps by holding a marriage back for three months a more mature decision could be made. Going back to the old days again, very often the instant cure for a pregnancy outside marriage was, of course, that the couple were almost frog-marched to the altar. They were married, whether they liked it or not. Many of these marriages could not work out right.
The Church itself is playing an important role by having these pre-marriage courses. They cover so many aspects of marriage that it is very difficult to see how a couple could go through a marriage ceremony and feel that they did not know what marriage was all about. This is one of the good things that has happened in recent years. It will play a big role in the actual stability of marriage in the future.
Marriage is automatically linked up with religion. We associate the sixth and the ninth commandments very much with it. We ought not forget that there are other commandments also. The fifth commandment can often play a leading role in marriage. If somebody wants to act as a savage or a bully it is very difficult to know which commandment takes precedence. I do not accept that when one gets married one has to make up one's mind to put up with difficulties. That is fine for the person who has not to put up with difficulties. For those who are caught in a bad situation it is no consolation to know that other people have very objective views on their position. People who are happily married often take the line that we can all be unreasonable at times, and that if such people had put effort into it, and if they had tried hard their marriages might have been happy.
That is fine for people who have the mentality and the maturity — and maybe the religion also — to help them to overcome difficulties. What happens in a situation where one partner has all the qualifications needed to make a success of marriage, but the other partner has neither the interest nor the talent to do the same? We must have sympathy for those who are caught in these difficult situations where one partner is suffering. Even if the marriage does not break up, it means that that marriage is suffering more and one partner in that marriage is suffering more because his or her life can be absolute hell in the confines of the home. The experience that children must have in living through an unhappy marriage, where they hear fighting and arguing, and perhaps see injuries, must be terrible.
I always feel sad when I hear of barring orders. Marriage is for life and a marriage is supposed to be a happy experience. A barring order means that the marriage technically is finished. Somebody is behaving badly or is accused of behaving so badly that he or she must be banned from access to the house. That is a very sad situation. It obviously calls for some help. Anyone dealing in public housing finds more and more that there are separated people looking for and getting houses. I heard a figure of 15 per cent mentioned some time ago in one housing estate. I do not know whether that is the correct figure. Even if it is not, it shows that people are having more marital problems. It is being reflected in the number of people who are looking for housing. There are problems and we must be sympathetic towards those people.
I know that the word "divorce" causes shudders in some people. This is where a lot of our difficulty arises. If we could call it anything else except divorce, there might be a more rational debate at times. Some people regard divorce as something that is there deliberately to wreck marriages. They can see nothing but harm coming from it. The recommendation is certainly not for divorce on demand. Every effort must be made to keep a marriage together.
At this stage I would like to compliment the members who spent so much time and brought out such a fine report. I would like to compliment in particular their chairman, that very genial TD, Deputy W. O'Brien, for handling a very difficult situation so well. They have discussed, in chapter 3, the role of education and the role of counselling and mediation. There is a chapter on the age of marriage. They have dealt with the positive sides of what can be done about marriage. While I suppose it is very difficult to educate a person for marriage or to guarantee a 100 per cent success, people start off in marriage full of dreams and ambitions of living happily ever after. Thank goodness, the vast majority of people achieve that. But there are people who, for economic, personal or physical reasons, have their dreams shattered early on. They just cannot live up to what they thought was going to happen. Education in itself will not prevent that from happening, but it probably would help many people to realise that marriage has a lot of give and take, and maybe a lot more give than take.
Another chapter deals with counselling and mediation which are very important factors in a marriage before it breaks down. I have very serious worries about the possibility of people getting married as young as they are getting married at the moment. I am not sure whether 18 years is old enough for marriage. I know we have made 18 years the age at which people are responsible for their actions, at which they can vote and at which they can get loans. It might be a contradiction to say that they could not get married at 18 years. There are some people very mature at 18 years but there are many people who are not mature enough to get married at that age. This is where there can be problems later on.
The question before us here today is that we have a referendum. There is an amendment suggesting that we have it within the lifetime of this Dáil. I am not at all in favour of having a referendum just for the sake of having a referendum. The last speaker mentioned that, if it is not held now, it will not be held by the next Government. By that I presume he means that we will not be in power the next time, which of course is a fallacy, that, obviously, we cannot accept at all. We will be here for a long time. Even if the other side were going to take over, I do not see any great advantage in having a referendum just for the sake of having a referendum.
Before we have a referendum the public will want to know basically what are we talking about in regard to divorce. As I said earlier, divorce means so many different things to so many people. For those who are happily married, it is just a bad word. They see nothing but harm in it. I suppose for those who are in serious difficulty it is a good word, but we would want to have some idea of what will be put into the legal process. There are recommendations on divorce plans, but what would actually be decided? I know that it has been said that we do not trust politicians to bring in divorce. It is not that I do not trust politicians to bring in a suitable marriage set-up at all, but if we are going to have a referendum people will have to have some idea of what we are talking about.
I would suggest that we would need the best brains of all the parties in this House to sit down to try to sort out what would help marriage to continue in Ireland, what would help family life to continue, and what would help those who have serious problems in marriage. At the very beginning of this sitting today we have not one Member of the Fianna Fáil Party present. When the Minister was absent for approximately three minutes, one of the Opposition speakers said it was a sign of the interest this Government have in marriage. That kind of play-acting is to me what makes a discussion on divorce very difficult. If politicians on all sides do not regard this as serious — and even doing one's best it is still difficult to come up with the solution — and if we have somebody trying to be funny, we are in difficulty.
I will conclude by saying it is vital that any changes we bring in will continue to help marriage and family life to survive for the sake of the children and the nation. I also accept that there are difficulties in certain marriages. We should do all we can to help those people and to help, in particular, children who may be born of relationships who at the moment are not regarded as children born in wedlock. These children had neither hand, act nor part in their birth. We should not sit back and say we will not bring in divorce because it will wreck marriages. Perhaps at the beginning the numbers seeking freedom from marriage might be high, because there are so many marriages in trouble at the moment, but I think the younger people will still get married, as the older people did, in order to live happily ever after. I do not think they are going to be waiting around the corner to get married, and say "We can get a divorce next year". I do not think that will happen. I sincerely hope that, in our efforts to bring about a change in the legislation, we will not bring in legislation that would encourage people to feel that way.
The question before us is:
That Seanad Éireann welcomes the Report of the Joint Committee on Marriage Breakdown, urges the widest possible debate on its recommendations and calls on the Government to consider the holding of a Referendum on Article 41.3.2º of the Constitution."
and the amendment to that calls on the Government:
to hold a referendum on Article 41.3.2º of the Constitution within the lifetime of the present Government.
I think the widest possible debate has taken place on this very important document, and I welcome that. In fact, very many Senators have spoken welcoming this very important and progressive report. However, the Labour Party group in the Seanad will be voting for the amendment that the referendum be held in the lifetime of this Government.
Senator Browne, in his fine contribution, spoke of a referendum for the sake of a referendum. It is not for us to anticipate what is going to happen in the future. It is up to us to anticipate what will happen in the present. It is up to us, as legislators, to place before the public a particular situation that is affecting a vast number of people. There are in the region of 70,000 people involved — and that could be an understatement. There are very many more people involved. I do not think there is a family in this country that has not been involved, directly or indirectly, with some family whose marriage has come under strain from one thing or another, such as unemployment or various factors which go hand in hand with the age in which we live. We in the Labour Party are very proud to have on our books, at conference after conference reports of subjects debated and motions passed calling for divorce under circumstances which are referred to in this report. We never asked for divorce for the sake of divorce. We asked that a humane attitude be taken to divorce. We were labelled as being progressive, being against society because possibly we were ahead of our time. Now, however, that time has come.
Irrespective of whether you come from rural Ireland or from the heartland of Dublin the problem is exactly the same, because the nation has moved progressively forward. The debate on the amendment was one of the worst campaigns I was involved in. The issue that was put up to us at that time was: are you in favour of abortion or are you not? That kind of twisting of the situation is not helpful in any debate. The Labour Party policy on divorce contains many safeguards, including the safeguard of the family courts and the safeguard of the conditions under which divorce would be granted. We have always emphasised the importance of education and the importance of the family.
The Government must take pride in the way they have helped the deserted wife, in the way they have stood over family breakdown and in the way they have progressively looked at the education of our young people in preparation for marriage. Many people are getting married younger than they used to, but that is the way society now is. The Government have helped families who were cast into the shadows. They have brought them out and given them a sense of pride. They have said to them "Your marriage is in difficulties. We will make sure that you are financially secure, that you can walk with your head up and your family are looked after".
The recent two Bills that Deputy Michael O'Leary sought to introduce have brought a certain momentum into this debate that will not be stopped. The Labour Party have made a good start with the introduction of the fine Bill drafted by Senator Mary Robinson. It has the full backing of the Labour Party. A referendum should be held, but I believe that referendum should outline exactly, clearly without any ambiguity, the circumstances in which a dissolution of marriage can be granted. We have the ridiculous situation of people going abroad and having to register in England for a period of a year or two in order to get a divorce. We have the ridiculous situation of so many of our people whose marriages have broken up living apart, with their children not knowing what the situation is and being ridiculed in school. We have the hypocritical situation that we do not acknowledge what is actually happening.
The Taoiseach has said that perhaps a referendum should be held, but not in the lifetime of this Government, and that we should wait until the polls show a majority in favour. I believe that is a big mistake. It is a big mistake to have to acknowledge that the polls decide what you will bring in or what you will not bring in.
There are many people on the other side of the House who say that divorce should not be granted under any circumstances; but there are many people in the Fianna Fáil Party who have agreed privately and would in the confines of a ballot box situation agree with the type of legislation that we wish to bring in, with all the safeguards attached to it. I believe there is a majority of those people in that party. We have to look at a situation which changes from month to month because of various events and because of scaremongering by certain individuals in this society, by people who stand on the so-called right wing of the Catholic Church and who pronounce on certain things. Many of them have very good motives but are hypocritical when it comes to their own situation. If their own families get into trouble the first thing they do is to put them on the ship to England for an abortion. They should be honest about the situation, acknowledge that we have come alive, that we are a part of Europe, that we are in control of our own destiny, that we understand the plight of so many of our people and the tragedies of it.
I do not think there is a Senator, a Deputy or a councillor who is involved in clinics who is not involved daily in the breakdown of marriage. They see the humiliation of families in cases where money is stopped and they feel themselves in a no-man's land. I do not think there is anybody who is honest who does not see exactly what is happening and does not do something about it.
The momentum is now growing stronger than all of us. It cannot be put back. I do not believe it can wait until the polls change or wait for another generation. The time is now.
The situation is a bit ridiculous when you can get an annulment if you are wealthy enough or if you are well in with certain priests who can get around the law. Yet, they are the very people who say that we cannot give a civil annulment. This is contradictory and carries all the hypocrisy I have just been talking about. The Labour Party have believed for a long time in social justice. The time has come to put this referendum to the people, to put it fairly, and honestly, but to put it with conviction and in such a way that it will not be a blank cheque for divorce but will allow divorce under very limited circumstances.
Marriage counselling is of the utmost importance. The Catholic Church has done a very good job in recognising the fact that people should be prepared for marriage. The most successful marriages have been those where pre-marriage courses were attended. Couples become aware of all the drawbacks and all the situations that the contract of marriage can bring about.
I would like to press upon Members that now is the time to have a referendum. The momentum has gathered and that momentum cannot be stopped; I hope that will be the result of the Seanad debate.
It is tragic that there is such confusion and tragedy in Irish marriages. I identify with Senator Conway when he said that people in public life are only too well aware of the increase in marital and family problems. I find that the increase in social problems, and especially in marital problems, in the last ten years has been astronomical. People put the blame for this increase on many different shoulders. The problems could be caused by social unrest, social deprivation, unemployment and so on.
In regard to family problems, from my experience social deprivation does not, in all instances, emanate from State policies. In many cases marital problems and marital breakdown are the result of downright irresponsibility. It is strange that marital problems and breakdowns occur despite the fact that there are many organisations willing to help — community councils, the ICA, the St. Vincent de Paul and so on. It is strange that people are finding it harder to rear their children. In many cases discipline is left to the teaching profession. Many people think that it is teachers who should discipline their children. If you want to find out a person's attitude to life the best guideline is to see how the parents conduct their lives. There are genuine cases where social deprivation plays a big part in marital breakdown, but in many cases it is as a result of downright irresponsibility.
Ireland is governed by a written Constitution which has the status of supreme law. Consequently any law which is inconsistent with the provisions of this supreme document is null and void. The referendum on the Constitution was passed in 1937. While it then reflected the thinking and perspectives of those who drafted it in that era, it is, nevertheless, interpreted by the courts in accordance with contemporary ideas. The whole thrust of our Constitution is aimed at promoting the common good. In the sixth Article of the Constitution this principle is clearly embodied. The Constitution states that the Irish people, in giving themselves this Constitution, have done so with the intention of promoting the common good, with due observance of prudence, justice and charity so that the dignity and freedom of the individual can be assured, true social order attained, the unity of our country restored and concord established with other nations.
The Constitution is regarded by many as reflecting the basic principles of Christianity. This is hardly surprising, since any law, whether supreme or otherwise, must to some extent reflect the spirit of the people whom it is intended to govern. This is, of course, not a new philosophy. It is as old as law itself. It is not peculiar to Ireland or to Irish constitutional law. Some of the most eminent jurists, at home and abroad, have expressed this view over the past three centuries. It is a settled principle that law, particularly constitutional law, in order to possess the capacity to endure, must be a clear expression of national consciousness. Frederick Savingy, the German jurist, in the late eighteenth century stated that that law grows with the growth of the people, strengthens with the strength of the people and dies away when a nation loses its nationality or identity.
A nation is a community of people linked together by historical, cultural and geographical ties. It is a community of ideas. In order for a civilised society to remain together there must be certain fundamental matters on which there is common concurrence among the members of that society. This can be briefly described as the public morality. There are certain principles which find common agreement among us all — freedom of movement, the right to marry, the right to work, the right to own and possess property, the right to life and so on. These are matters which are taken for granted in most societies, but they are all part of the mechanism that makes up public morality. This public morality is as necessary for society and as fundamental to its existence as the skin is to an animal, in so far as it keeps the rest of the body together.
There is a point at which society can fragment and drift apart if there are not certain matters of common agreement, matters that are essential for its cohesion. Absence of these invisible threads can cause fragmentation among society and create unbridgeable gulfs. Once a society agrees to differ on certain matters a logical consequence is an attempted insulation by the different groups of their respective viewpoints. As a result society will be made up of groups of people who have less and less in common. Therefore, it is hardly surprising that our Constitution, the supreme law governing the government of the country and setting up the most essential institutions of the State, should have gone some way to reflect the spirit and the innermost feelings of our people.
Article 41.3.2º of the Constitution states:
No law shall be enacted providing for the grant of a dissolution of marriage.
This Article prevents the Oireachtas from embodying in any of its domestic laws legislation providing for the dissolution of marriage or, in short, providing for divorce. This provision has been the subject of much criticism and has been the target of many pressure groups who believe that divorce should exist as a civil right. Some religious minorities in the State have attacked this provision as being sectarian and as an imposition of the Roman Catholic philosophy on the entire nation. Some of them argue that it provides for inequality in the law. Indeed, this argument can be given short shrift because the provision has the same effect on all denominations in society — Catholic, Protestant or Dissenter. The fact that there are religions in society which allow for the dissolution of marriage and subsequent remarriage of the parties is no more a justification for removing the constitutional ban on divorce than the existence of polygamy in accordance with the provisions of certain other religions can be a justification or an indication of a need to dismantle our laws on bigamy.
Law and order are not absolute concepts. Law is not an end in itself. It exists for the common good and for improving the lot of mankind. The law is not there merely to serve the individual's interest. It is there to serve his interest with the good of society in view. The law should be concerned with the promotion of the happiness of the greatest number. The law comes into operation to reconcile competing interests. Society uses the law as an instrument to reconcile selfish purposes and to suppress the selfish one when there is a clash between both. Therefore, the law does not — and should not — approach a problem from the perspective of the individual interest alone. It should address itself to a problem with the good of society as a whole in view because the law's business is concerned with the promotion of the happiness of the greatest number.
The task of the lawmaker, the Senator, the Deputy, is to build as strong and as efficient a structure as possible with a view to satisfying the maximum number at once in society and with a view also to eradicating conflict and waste. As there are competing interests involved here those interests as viewed from the standpoint of the individual and the interests of the State in social matters and institutions, the lawmaker should strike a delicate balance between all the interests involved in order that an organised society may endure. It is the business of the lawmaker to strike down an interest or conduct which threatens cohesion or the unity of society.
Marriage is a social institution which is fundamental to the existence of an organised society. The formalities of a marriage are deeply rooted in the cultural backgrounds from which the parties emanate. There is no other social institution which reflects better the norms of society than that society's institution of marriage and the laws governing that institution. It is the duty of the lawmaker to ensure that the institution of marriage survives, thereby ensuring the continuity of the nucleus of the family. It is in this institution that the physical and psychological security of all the family can be ensured.
The family is a fundamental unit of society and it is recognised in the Constitution as the most essential institution in our society. It is the duty of the legislator to ensure that children are brought up in a family environment. A legislator who neglects this serious task of attempting to whittle away the dignity of the family as an institution is recklessly tampering with the very fabric of society. This is particularly so in relation to this topic. As already stated, the institution of marriage is deeply rooted in the cultural background of the parties. This type of neglect can only be seen as chartering the course of the nation towards chaos.
I have in mind some stories I heard from America where young children have to readjust their lives not only to a second set of parents, a second mother or father, but in many cases to a third set. The process of change for young children who are involved in marital breakdown in a country where divorce is pretty common, where children have to adapt themselves to a family way of life completely new to them, can have a very detrimental effect on them.
Marriage, because of its fundamental nature, whether viewed from the standpoint of the State or from the individual, must reflect the innermost feelings of society. It is an inescapable fact that the law governing marriage in our society reflects certain principles of Christianity. These principles are not merely there because they are Christian in nature, but they got there because of Christianity. Not even the most narrow-minded of our legislators would wish to keep it intact merely because it is Christian, but they would all agree that it is part of the house which we live in and that it is now, in its present form, the corner-stone of our society and if we were to remove it the house would fall down. Whether we like it or not the majority of our society are in favour of maintaining the institution of marriage in its present state and consequently of maintaining the constitutional ban on the enactment of legislation providing for the dissolution of marriage.
Jurists and sociologists regard divorce as a civil right, as a right appertaining to the human personality. We must remember that only a small section of our society are eminent jurors or eminent sociologists and the fact is that the will of the majority must be obtained before any attempt can be made to remove the constitutional ban on divorce. Unless legislators are convinced that public morality, an area that is very slow to change, has shifted sufficiently in this direction so as to ensure the desired result the holding of a referendum on this issue at this particular time might or might not be folly. I have no objection whatsoever to the Government holding a referendum. It is up to the Government to make that decision.
What are the factors that indicate that it could be desirable to change the law in this area at this time? The view of the majority Church is that marriage is a sacrament which is indissoluble and that mankind does not possess the confidence to embody in its municipal law legislation providing for the dissolution of marriage. This is traditional Catholic teaching. Successive Pontiffs however have exercised power to dissolve a marriage down the years. In the case of non-consummation of marriage successive Catholic authorities have continued to dissolve the marriage and to permit the parties to it to remarry. Our domestic laws, however, do not recognise the confidence of the Catholic Church to set aside such a marriage and any party to such a dissolution who remarries or attempts to remarry will be regarded by our law as committing bigamy, which is a serious criminal offence punishable with imprisonment for seven years.
The Catholic Church does not recognise a marriage between two unbaptised Christians. Consequently, if one of the parties agrees to become a Roman Catholic and become baptised, the Catholic Church would be prepared to remarry that person in accordance with the rules of the Catholic Church regardless of the fact that this person may be married in accordance with the national laws of this country. A marriage between a baptised Catholic and a non-baptised person is regarded by the Church as lacking the sacramental character: consequently if the baptised person wishes to marry a Roman Catholic person the Church will be prepared to accept his application for annulment of the previous marriage and will remarry him in the Catholic faith. The State consequently will not recognise any such disunion. This disunion is regarded as being granted by the Catholic Church in favour of the faith.
Our law will nevertheless recognise certain divorces. I have no doubt that, but for the express provision in the Constitution preventing divorce, if any appropriate case were to come before the Supreme Court, having regard to the Supreme Court's interpretation of personal rights, the Supreme Court would have been prepared to recognise, and include part of the rights attaching to the human personality, the right to the dissolution of marriage in certain areas.
It is becoming more and more apparent that our society, our people, are being influenced to a great degree by the media and television. We are a nation that has become dominated by outside influences. I feel that in many instances many of the problems in marital breakdown today could be avoided if they were identified at an early age. One of the major problems in marital breakdown is lack of communication, the wall of silence. We have a long way to go and the sooner we start to tackle marriage problems in this country the better.
It should be clearly understood that the Church is prepared to set aside a marriage in accordance with certain dubious principles which have already been enumerated. It is doubtful if any legislator in a civilised society would be prepared to set aside marriage on these principles which the Church regards as adequate. It is not a sound argument against the introduction of divorce legislation that divorce is contrary to the principle of Christianity because the law should, as far as possible, particularly where there are divisions in society of a religious nature, try to straddle the two extremes of thought and strike a balance between the two thereby ensuring that the law will not be seen to come down in favour of any religious belief. Our law does not enforce Christianity and indeed at no stage since the foundation of the State did our law attempt to enforce Christianity on any religious philosophy. It is arguable that a country which no longer enforces Christianity by its laws no longer has the right to embody Christian principles in its legislation at least internationally.
Those who argue in favour of changing the law in this area just because their particular religious philosophy allows a certain standard of conduct are arguing in favour of replacing one code of moral conduct with another. This would be a wholly unsatisfactory circumstance. When accepting that divorce is a civil right to some extent it is inevitable that sooner or later our legislators are going to be called on to decide in what form, if any, divorce legislation should be introduced into our national law. Nobody envies the legislators the task as even the most cursory examination of societies where divorce legislation operates will bring home to us the chaotic conditions that this type of legislation can give rise to. It is a fact that the enactment of legislation providing for the dissolution of marriage will have an impact on the institution of marriage to its detriment. This fact is borne out by social developments in other countries: the high percentage of marriages in Britain that finish up in the divorce courts; nearly two out of three marriages in the US end up in dissolution. Although some sociologists will argue that divorce comes about as a consequence of marital breakdown it is an inescapable fact that when the legislators of any country introduce law providing for the dissolution of marriage there is the implication that the legislators, who are the rulers of society, are making a statement that the right to disengage from marriage is a civil right and thereby endorsed by the State as being such.
First, I wish to say how pleased I am to be able to make a contribution on the report of the Joint Committee on Marital Breakdown. I think the joint committee, as many Senators have noted already, are to be congratulated not alone on the fact that they met and produced a report but on the excellence of the report. They did considerable work in advancing discussion on this growing area of concern in the community. It is not a concern that is just felt in the greater urban areas of this country, such as Dublin, Cork, Limerick and Galway; it is felt universally throughout the country to be a subject we must deal with in the foreseeable future. This becomes more apparent then ever when one reads the comments of the Informal Committee on the Constitution, dating from 1967, dealing with the present Article in the 1937 Constitution which reads:
"No law shall be enacted providing for the grant of a dissolution of marriage".
It is relevant that in section 788 of their report that committee on the Constitution, which was an informal all-party committee including among its membership at least two Members of this House at that time, said that the universal prohibition had been criticised mainly on the ground that it takes no heed of the wishes of a certain minority of the population who would wish to have divorce facilities and who are not prevented from securing divorce by the tenets of the religious denominations to which they belong. It is argued that the Constitution is intended for the whole of Ireland and that the percentage of the population of the entire island made up of persons who are Roman Catholics, though large, is not overwhelming. The prohibition is a source of embarrassment, they felt, to those seeking to bring about better relations between North and South since the majority of the Northern Ireland population have divorce rights under the law applicable to that area. It has been pointed out that the rather predominantly Catholic countries do not in their constitutions absolutely prohibit the enactment of laws relating to the dissolution of marriage. Finally, attention is sometimes drawn in discussing this subject to the more liberal attitude now prevailing in the Catholic circles in regard to the rights and practices of other religious denominations particularly since the Second Vatican Council.
In paragraph 1 (2) (6) it goes on to say that it can be argued therefore that the existing constitutional provision is coercive in relation to all persons, Catholics and non-Catholics, whose religious rules do not absolutely prohibit divorce in all circumstances. It is unnecessarily harsh and rigid and could be regarded as being at variance with the accepted principles of religious liberty as declared at the Vatican Council and elsewhere. It then states: "It seems, therefore, that there could be no objection from any quarter to an amendment to the Constitution on the lines we have indicated in an earlier paragraph and we unanimously recommend that such an amendment be made."
Almost 20 years have passed since that informal committee on the Constitution sat and recognised that there were embarrasing consequences to the 1937 Act dealing with the dissolution of marriage. I felt it was not outside the realms of possibility that the committee which sat more recently and worked so well would have moved in much the same direction with a great deal more understanding of the problem with much more access to the difficulties by way of oral hearings and the consensus reached in relation to what should be done on this subject.
With some 70,000 to 100,000 people affected with their dependants there must be a call reaching every community to face up to the issue in the foreseeable future. We cannot ignore the failures of marriage and we cannot just say to ourselves that these marriages are in difficulty for a variety of reasons such as the incompatability of couples, the age at which they decide to get married, the different degrees of maturity of the spouses, the discord that develops, the alcohol, the drug abuse and the violence and cruelty that often enter into a marriage situation. What we must do is try to build on the successful marriage. Continuing in a failed marriage is not assisting those in the community who would hope for marriage to be lasting. In chapter 4 on marriage breakdown the committee go on to say:
the essence of marriage is a formal commitment, made in the presence of witnesses, to create and maintain a lasting and stable relationship between the spouses. The extent to which the stability of this relationship is subjected to pressure will vary. Pressure is brought about from within the relationship by the interaction of the personalities of spouses on each other and from outside the marriage by social, economic and environmental pressures such as bad housing, unemployment and the changing values and ethos of society. Most marriages in Ireland deal in the normal course with these pressures, but in an increasing number of cases those pressures can lead to friction and conflict which cannot be resolved and which lead and can lead to the breakdown of marriage.
These are issues that have to be faced alongside the issue of facing up to a programmed understanding of the needs of couples who have irrevocable breakdown of their marriage and who seek to get a judicial separation and who must be facilitated in due course by the State in relation to a new home situation that has developed or to a future marriage they may contemplate. We are all aware of the second unions — and the Incorporated Law Society of Ireland stated this in their public submission to the Committee — being entered into and continued with every appearance of stability and happiness in which partners beget and raise children or possessing all the appearances of a regular family. The second union does not have the State recognition or protection as a marriage. When it is recalled that at least one of the partners in such a union is a living spouse with whom at an earlier date marriage vows were exchanged and as the number of such second unions taking place is small the norm of the marriage as a commitment for life come what may, could still be a norm accepted by society in general.
I am working to attempt to chart the course that this country should follow with the mood of the people growing in favour of a reasoned amendment to the Constitution, one which would be seen to be reasonable and not one that could be reasonably obtained. If 45 per cent of the people now recognise that there is a need to face up to this issue we must see to it that that consensus which is growing is not passed over or ignored. We owe it to the younger generation not to undermine further their respect for political institutions. The younger generation need to feel the maturity of our public institutions, such as these Houses, and this Oireachtas will be failing in its duty if in the foreseeable future the marital breakdown issue with important changes in relation to education, counselling and mediation in support of marriages is not dealt with. We must see to it that steps are taken to deal with the failures of the system and the failures of marriage where they occur.
One area which should be treated with a good deal more significance than the report of the Committee on Marriage Breakdown treats it, is the area of the State in which a civil marriage takes place. I believe that a considerable number of people facing into a wedding, reach the church of whichever denomination they are attending, and then arrive at the sacristy where the civil marriage takes place with little understanding of the significance of that particular stage. There must be room for thought regarding separating the civil and religious ceremonies of marriage and attempting to ensure that people begin to understand the contractual stage they have reached. We must not just educate them beforehand and insist in the civil area on a three months waiting period, as the Churches are inclined to do, but also attempt to encourage people to understand the civil ceremony and its significance and to that end, that it be taken from the Church and treated as part of the wedding day process but a separate part of the day, which is the norm in so many other European countries, where the significance of that stage becomes more clear to those who contemplate getting married.
The difficulties we are faced with here in relation to a referendum are not helped by the amendment before this House in relation to a decision that the referendum be held within the lifetime of this Government. I would like to see a referendum being held on a subject that has secured unanimity from a consitutional committee as far back as 1967, that shows itself to have become an increasing tragedy within our community by way of the numbers who have broken unions and unions with others that require the support of the civil law in relation to their future. I would like to see it being done at a time when a referendum would succeed. I welcome the position taken by the Taoiseach in a "Today Tonight" programme last week in which he seemed to be indicating that this issue would be dealt with as soon as practicable and not dependent on what type of attitude we are getting from the Opposition and the Leader of the Opposition in particular.
It is important that this matter be advanced when we can be certain or almost certain of a favourable outcome to this very important area — probably the most important area of social change that we, as legislators, can effect in the present situation. I would hope that, in dealing with it in a mature way, in not ignoring the failures, being conscious of the human tragedies that are part and parcel of the dilemma of so many and a growing number, we might move in a considered way that will be seen to encourage the institution of marriage and not make it easy through a process of many years for a civil divorce to be obtained, but to recognise that civil divorce and the ability for couples who have broken up irrevocably, to remarry is an essential part of our Constitution. That is particularly true when me meet people from other European countries where this has passed into law so many years ago and whose belief is that this matter cannot be ignored any longer.
I would hope that this area can be treated outside the realms of political discord and depoliticised as far as possible but treated with a degree of urgency as soon as it is practicably possible for us to achieve it. I would not be sure that this Government could face it within the next two years. I would be hopeful that it should and could, but I think to demonstrate an interest and have a continuing debate such as can take place in this House and the other House is the right approach to it.
I do not wish to make a lengthy speech at this stage in the debate since most of the points arising from the committee's report have been dealt with in one way or another. In making a very short speech I want to emphasise the point that I suspect the last thing we need on this subject would be a long drawn out debate which could give rise to further deepening of some of the divisions which exist in our society when matters of this nature are touched upon. We have had some illustrations of that in recent years. The best thing to do is to recognise that we have this problem. Nobody is disputing at this stage that there are very real, genuine problems caused by marital breakdown, that there is a necessity to do something about them and that since we operate a constitutional democracy the sensible thing is to seek to deal with the problems as far as possible in the legislative sphere. In saying that I want to emphasise and recognise that marriage in the full sense of the word is not simply a legal matter, but there are legal aspects to it. These are aspects with which we as legislators are required to deal.
The specific item before us is whether or not there should be a referendum and, more specifically, whether we should urge the Government to consider holding a referendum or whether we should ask them to hold it within the lifetime of the present Government. I support the notion that it should be held as quickly as possible. I do not believe any useful purpose would be served by postponing decisions, by prolonging debate, by giving more and more airing to — frequently — the same viewpoints. As they are reiterated they tend to be reiterated with more heat and less light thrown on the subject.
We all know that some of the tensions and differences of viewpoint arise in this area because of the intermingling of both the personal relationships involved, the legal aspects and the moral or theological aspects. Most of the people who find themselves in the married state are happily married in the sense that they have no personal pressures or need for divorce; but that approach to it is not adequate for us. As legislators, we have to ask ourselves how do we best cater for the needs of the people in general. In that area in the legal sense we are dealing primarily with the contract aspects of marriage, with the consequences that arise in terms of property, in terms of legal rights and entitlement between the partners themselves in the first instance and then in cases where there are children, between parents and children.
In recognising the teachings of the Churches in these matters I find it very difficult to go along with the attitude of people who can agree with annulments or nullity in cases where there are children of a union and yet cannot bring themselves to agree with some form of divorce. I often think this is simply because there is the power of the status quo, that because something is there it will be accepted and when you propose changing it this is some form of heresy.
It would be very interesting if, as a legal matter, people were asked to vote on whether or not there should be divorce or whether or not there should be annulment in circumstances where there are children of a union. I am using the word "union" because marriage ultimately is a relationship between the two people concerned. The State are witnesses in the legal sense because of the property and other contractual aspects. The Church are witnesses primarily from their involvement and concern for members of their flock, dealing with the moral aspects of these unions, but ultimately it is a union of the people themselves. If one is going to have to decide on whether or not there should be nullity or an annulment of a marriage, I can see the circumstances in which that is granted when no marriage has taken place in the physical sense; but I find it very difficult to understand the legal type of reasoning which can support nullity in the legal sense but cannot support some form of civil divorce. I would have thought that we have to do something in the legal sense to recognise the situation of people who, as people, find themselves now in a stable union so that from the personal relationship point of view most people would say there is a marriage; from the Church's viewpoint they are regarded as married but from the legal viewpoint they are in no man's or no woman's land.
We do need to deal with this matter. I do not see how we can avoid having some change in the legal situation which would recognise the practical circumstances of cases where some initial relationship has broken down and where some alternative relationship has been formed among the people. In dealing with that aspect from a legal point of view I do not see that one is passing any judgement on the personal behaviour of those involved, nor do I see that one is intruding into the moral sphere or dealing with theological matters. In a civil state, from the viewpoint of the best ordering of civil society, it is our responsibility as legislators to take up and resolve the practical problem of the contractual aspects arising from cases of marital breakdown.
I believe there should be a referendum. In a constitutional democracy obviously we will be bound by the verdict of the people in these matters. In the first instance, it is our duty to bring the issue to the people and to have them decide upon it. I hope that that debate and decision will take place in the most calm and reasoned atmosphere. We should try to avoid reducing it to the level of either a partisan, political issue or having it raised to the level of a confrontation between Church and State. I do not think that is a necessary aspect of the matter; it is not relevant to the practical, legal aspects of the circumstances of people who find themselves in a situation of irretrievable marital breakdown.
In my political lifetime I have had to give consideration to all kinds of aspects of living together. I was brought up in a typical liberal environment — we did discuss divorce. Coming into this debate, I try this test on myself from time to time: I pose hypothetical positions. I came up with this one for the Republic. Suppose that everybody in the Republic were Catholic with no minority, would we use the same arguments for divorce as we are now using and the various groups that are involved are using? If they mean what they say, and if I mean what I say, we should use the same arguments with the same power and the same intellect because it is a right, not because there is a minority in the Republic with a different ethos.
That is merely incidental or fortuitous. It possibly strengthens the argument made by the people in the Action Committee for Divorce. If everybody were Catholic in this country that would be the position that I would occupy and the Labour Party would occupy if they understand Labour policy in its essence. I was addressing a social study conference in Falcarragh years ago and I made the point that the provision for the special position of the Catholic Church in the Constitution ought not to have been there in the first place and should be removed. I made that argument in other places as well. It was removed.
I remember well that evening saying that as far as I was concerned and people who thought like me, the divorce element in the Constitution fell into the same category. It was put into the Constitution, I think, as a political sop to Catholic clergy, Hierarchy and people for political purposes at that time. It ought not to have been there and should be removed because it is a right. We just happen to have a minority in the Republic and we feel bound to add that weight, whatever value it has, to endorse the arguments we are making.
A referendum should be called fairly soon. A long debate is unhealthy and unseemly, and there is a possibility that this very sensitive question will become a political football if we are not careful. That is the way I see it. The report of the Joint Committee on Marriage Breakdown is to be welcomed. It is a comprehensive document on a very deep serious social problem. Legislators and other interested parties will have read the report and will have concluded that it is not only meticulous in its examination of the elements of the problem but treats the whole matter with sympathy and compassion. It is an intelligent, reasoned document on a very deep-seated social problem. The sensitivity should at all times be maintained. It follows that whatever administrative or legal mechanism is proposed or promoted should gain the support of all the political parties regardless of what party takes the initiative.
The Labour Party policy over the years is clear and unambiguous and I submit that attitudes to the divorce question must be made clear to the people. I join with my colleague on the other side of that particular element of the debate. It must be made clear to the people. That should not be too difficult. Whatever doubts or misgivings arise out of public debate on the matter the people are entitled to know where their legislators stand. The whole question of breakdown of marriage and the possibility of divorce under given circumstances and the safeguards built in are too serious a matter to be made a political football. It is too sensitive unless we want to become objects of ridicule in Europe. It would appear, if we observe recent posturings, that there is developing a situation in public debate that can be best described as political gimmickry and opportunism. This is wrong. The Labour Party needs no pacemakers on this question.
From time to time as legislation is proposed and debated in both Houses reference is made to attitudes in Northern Ireland in the context that they, that is the people of the North, the Loyalist Protestants, might consider opting for a unitary State in Ireland if the laws in the Republic come up to their required standards of morality or liberal democracy. This is to oversimplify the Northern Ireland Unionist Loyalist stance. I do not recollect the Unionists, through their public representatives, making such statements or taking that particular attitude but I get the impression from the Unionist stance that they say that their Protestant ethos would wither, as they say in the West, like snow off a ditch, against the impact of an Irish Gaelic Catholic ethos in the Republic. That is their stance regardless of how you liberalise the laws, and that is the problem. In any case, had they not opted for secession in the twenties, surely they would have had a powerful balancing influence in that new State of the Thirty-two Counties and its legislation. They carry that responsibility for having opted out and, therefore, not providing the balancing influence in the Constitution.
Secondly, it is not a question of coming into the Republic and accepting existing legislation. That is a nonsense. The New Ireland Forum Report makes that quite clear. Nobody is asking the Northern Ireland Unionists to come into the Republic and accept existing legislation. It is rather a question of both Legislatures, North and South, joining to produce a new agreed Constitution for a new Ireland, a Constitution which would and should have all the safeguards necessary for a developing democracy. What I am saying is that we are not engaged, I hope, in introducing laws or amending legislation simply to attract Protestant or Loyalist minds. Where that is a consideration, especially legislation in the social arena must first of all satisfy the criteria of civil liberty, human rights and human dignity. The right to divorce is one of these and I submit that in the lifetime of the Parliament, which is a short period, and even sooner the Referendum should be held and the divorce enactment should be removed from the Constitution.
I too welcome the report of the Joint Committee on Marriage Breakdown and compliment the chairman and the members of the committee on the production of an excellent report. We as legislators in this House, like Deputies in the other House, receive in our post every day reports of various kinds. Many of these reports one finds difficult to digest but the contents of this report make compelling reading. The report is a fair comment on certain aspects of social life in this country in the mid 1980s. I compliment the committee on their work and I thank them for the enormous amount of time and energy spent in preparing this excellent report.
The motion before us is that the Seanad, first, welcomes the Report of the Joint Committee, second, urges the widest possible debate on its recommendation and, third, calls on the Government to consider the holding of a Referendum on Article 41.3.2º of the Constitution. The amendment to that motion is that that referendum should be held within the lifetime of the present Government. Article 41.3.2º is of course the Article which provides:
No law shall be enacted providing for the grant of a dissolution of a marriage.
The view I would express very simply on the amendment and on the comments of the last speaker and on the comments of Senator O'Donoghue is that the referendum should be held at the best time, at the right time, and I do not agree with Senator O'Donoghue's comment that the referendum should be held as quickly as possible. I remember the night the Second Stage of the Family Planning Bill was passed in the Dáil. On that night I was in London attending a meeting of Irish people who were political activists over there and their main concern that night was that the Second Stage should pass in the Dáil; their worry was that it would not and that, if it failed to pass, this country would be held up to ridicule internationally.
I express the very same worry with regard to a referendum for the purpose of deleting Article 41.3.2º. Before putting that referendum to the people I would like to be absolutely satisfied that it has more than a fair chance of success at the polls. At this moment I am not altogether satisfied that such a referendum would, with any degree of certainty, pass that test. If a referendum on this issue were put to the Irish people at this time and if it were to fail a lot of damage would have been done to the institution of marriage and to the cause of trying to help those who are faced with the problem of marital breakdown.
Having said that, I believe that if we examine the motion before the House, which urges among other things the widest possible debate on the recommendations of this report, and if we encourage that debate not merely in this House but also in the other House and if we, as legislators, encourage that debate into the country, I am satisfied that within a short period of time the holding of a referendum on the removal of the prohibition contained in Article 41.3.2º would have a reasonable chance of success. We have a duty to bring this report beyond the Houses of the Oireachtas; we have a duty to bring it into every forum in this country where reasonable and constructive discussion takes place so as to ensure that the contents of that report are appreciated and that the implications of the change in the law suggested are fully appreciated.
I resent very much a comment that was made by Mr. John O'Connor, who is an activist in the Divorce Action Committee, some months ago when he said that the attitudes of some politicians with regard to this issue — he was referring to those who do not want any change — were somewhat similar to the social attitude one would expect to emanate from west Mayo. I resented that comment very much at the time because it suggested that there was not an appreciation in rural Ireland, as distinct from urban Ireland, of the kind of problem that the joint committee attempted to tackle. I want to put it on the record that there is very much a problem of marital breakdown in rural Ireland as well as in urban Ireland. I say that not merely as a legislator and as a public representative who deals with people faced with problems of this nature, but I say it in a professional sense as a lawyer who deals with clients coming from both rural and urban backgrounds. There is a problem and there are people in distress in rural Ireland who do not have proper remedies available to them. The only difference is that the people in rural Ireland tend to be far more frightened in facing their problem than the people in urban Ireland. Anybody who believes that there is not a problem in rural Ireland and anybody who believes that there is not an increasing appreciation of that problem is not thinking in the right direction.
We should hold this referendum at the right time. I concur absolutely with the view which the Taoiseach expressed on television two weeks ago when he also urged that we have the widest possible debate on the report of the joint committee in both Houses. Following that debate public opinion will take up in a very broad and definite way the kind of problems that we, and the joint committee in particular, have been considering for the past 18 months.
I want to take issue with something Senator Lynch said when he was suggesting that any change in the law would be an attempt to move our family law from a basis founded on Christianity to some other basis. I do not think such is the case. I say that as an advocate of change. I certainly disagree very much with this argument. I also resent the fact that, as we come to the end of this debate in this House, the debate should be clouded in controversy and that the argument should be focussing on one particular issue, namely, the divorce question, and appears to have shifted away from many of the other matters referred to in the report of the joint committee.
Before I mention some of the aspects specifically I wish to refer to one other body who have played a role in all of this, and that is the role which the Catholic Church has played with regard to this debate as it has developed. I resent very much being told by any member of the Hierarchy that I, as a Catholic legislator — and that is what I am — must legislate as dictated by my Hierarchy and that I must be guided by them absolutely in the legislation I attempt to enact in this House. I resent very much that intrusion into my role as a public representative. There are people in my own constituency who said to me: "Do not express that view in the Seanad". I will express that view in the Seanad because I resent very much that intrusion. I also very much resent the lack of balance which has developed with regard to this entire issue. The fact that some members of the Hierarchy have been expressing particular views telling legislators what to do has intended, on the other hand, to cloud the very constructive role which members of the Roman Catholic priesthood have played over the years in attempting to grapple with this particular problem. The great shame is that we as legislators in the past, and that the Houses of the Oireachtas in the past, have failed to deal sufficiently with this problem. If one examines the report in detail and if one picks out various areas which are commented on from the point of view of the civil law, if one sees the neglect on the part of the Legislature in dealing with those problems and if one compares that with the motivation and constructive approach of the Catholic Church over the past 20 years in dealing with those problems, one certainly sees where the lack of balance comes into the argument.
I wish to refer briefly to a few of these areas. There is the question of nullity. We in the mid-1970s produced an excellent White Paper dealing with that, including a draft Bill, and we followed that up with a report of the Law Reform Commission dealing with the very same issue. Yet we as legislators have done absolutely nothing to try, in a legislative sense as distinct from what our Judiciary have been doing, to update the law with regard to nullity. Compare that, on the other hand, with what has been happening within the ecclesiastical courts where the whole developing law of marriage has been given an impetus by the canon lawyers and where Roman Catholics who previously would not have had a facility within their ecclesiastical courts now have the facility available.
I refer to another aspect which I will be speaking of in a few moments in greater detail and that is the whole question of preparation for marriage. We as legislators have been legislating every day here to ensure that people enter into certain contracts provided that certain preconditions are filled and yet we have done nothing to ensure that anybody entering into the contract of marriage fulfils certain preconditions other than that he or she attains a certain age. Compare that with the rule of the Roman Catholic Church which now provides that somebody who is to be married must go through a certain course of preparation. We have done very little for the unmarried mother. I compare that with the development of the CURA organisation, a Church organisation. I make these points to try to bring some balance into this argument and to say that, whereas on the one hand I will not be dictated to by the Hierarchy, on the other hand the dictating members of the Hierarchy should not be those against whom the whole actions of the Church should be judged. There have been many, many other people who have played a very vital role within the Church to ensure that the family, and marriage in particular, have achieved the kind of protection that we would like to see it receiving.
In welcoming the report I would also like to say that this Government have attempted politically to come to grips with what are a very serious set of problems. I do not wish to be controversial and I do not want to be political in commenting that the approach of the Government must be contrasted with the back seat being taken by the Opposition party on these issues. That is very regrettable. I am forced to ask myself the question: where is the idealism of Donagh O'Malley? Where is the honesty of Paddy Smith? Where is the determination of Deputy Desmond O'Malley? Where is the openness of Seán Lemass, who, in his latter days served as a member of the Committee on the Constitution on the mid-sixties which recommended change in this area? Where have all of these open ideas gone? I would say to the Opposition party, as people who must play a very important role in ensuring stability in our society, I would say to our friends opposite: please try to achieve a greater openness within your party. Without that openness it is going to be very difficult to come to grips with the problems we are talking about here.
I want to zone in on four aspects of the report. Firstly, in chapter 3, which is the chapter entitled: "The Protection of Marriage and Family Life", I want to express the view that it is the most important chapter in the report. Chapter 3.1.3 says:
The Committee is aware that some of the problems which give rise to the breakdown of marriage are present before the marriage. The Committee stressed the need for an educational process to reduce the element of uncertainty so as to promote awareness, reflection and mature consideration by all parties.
Again, in chapter 3.1.4, the committee draw attention to the absence of cohesive and comprehensive educational programmes designed to prepare people for marriage within the present educational system. I would agree very much with what the joint committee say in that regard. Before people enter into the contract of marriage the State should be satisfied that both persons have had the opportunity of getting to know one another, that they have had the opportunity of developing an awareness of one another and that they have had the opportunity of knowing what marriage is all about. I am suggesting that we should legislate for a period of preparation or of knowing about partners before they actually formally marry. This point is also made by the bishops in their pastoral "Love is for Life", at paragraph 229. I quote:
It is paradoxical that marriage is one of the easiest contracts to enter into, though one of the most serious in terms of its consequences and responsibilities for the whole lifetime of the partners. International statistics show that marriages contracted under the age of 18 have a high risk of breakdown. It would seem, therefore, that the minimum legal age for marriage should not be less then 18. It would be useful to have a legal requirement for adequate prior notice of intended marriage.
This is something which the State should do. I also think that the Minister responsible, whether it be the Minister for Women's Affairs or the Minister for Justice or the Minister for Health, should try to stress to people, whether by a publicity campaign or otherwise, that marriage is not simply about an expensive reception and a photographer and white dresses. It seems to me that so many people in preparing for marriage spend thousands of pounds on the actual day and end up returning from the honeymoon penniless. Again, it is a reflection of the fact that commercial interests are able to zone in on young people at perhaps one of the most vulnerable moments in their lifetimes and that they are able to take steps to ensure that when these young people actually achieve marriage they are not financially in a position to support the marriage. That, in turn, can lead to immediate stresses and strains. That is certainly my experience having been involved with young people who buy houses or enter into legal contracts subsequent to marriage. Frequently there is not the basis to allow such legal contracts survive. As a result there is this type of stress and strain within the marriage, which is unfortunate.
Chapter 3 of the report also deals with the question of the age of marriage. This was provided for in the Marriages Act, 1972, and the current age of free marriage is 21 years. In this House, when addressing the Minister for Justice on the Age of Majority Bill, we made the point that the age of marriage should be reduced to 18 years of age in that piece of legislation. The Minister for Justice in his response in this House said that that was an issue which, so far as he and the Government were concerned, would await the report of the Joint Committee on Marriage Breakdown. That report has now issued and it suggests removing the existing 21 year unfettered age of freedom and lowering it to 18 years of age. I concur in that recommendation; it should be implemented at the earliest possible date. But I do not agree with the suggestion by the joint committee on the desirability of fixing an absolute minimum age of 16 years for marriage. If that suggestion were implemented it would in effect remove the existing freedom which the President of the High Court exercises in dealing with applications by young people. These are applications which are made to the President under section 1 of the Marriages Act, 1972. I will quote from the report of the Law Reform Commission on the law related to the age of majority, the age for marriage and some connected matters. On page 21 of the report there is an interesting statistical table dealing with applications in respect of under 16 year olds who make applications to the President for permission to marry. In the five years between 1978 and 1982 there were 16 such applications. Of the 16, ten were granted, two were refused and four were not proceeded with. There are certainly situations where there may be a validity in allowing a person under 16 years marry. There may be certain exceptional circumstances. I do not think we should introduce the absolute prohibition which the joint committee suggest in this regard. I believe we should retain the jurisdiction which the President of the High Court currently exercises in that regard.
Chapter 4, which deals with marriage breakdown itself, is one of the weakest chapters in the report and it is a chapter on which I do not want to comment any further. But there are three specific issues on which I would like to comment. The first one is the question of the law relating to nullity, of which I have already made some mention. I believe, irrespective of any decision which is made in relation to the divorce issue as such, the State should proceed to update the legislation dealing with the law governing nullity. The existing legislation is the 1870 Act. Section 13 of that Act governs the matter. As the report of the joint committee mentions, the Attorney General in 1976 recommended the repeal of that section and the introduction of his Nullity Bill which would give a wider legislative jurisdiction in this area. I believe there is an urgency with regard to this because there has been much judicial interpretation of the courts jurisdiction by virtue of section 13 of the 1870 Act. The committee report the view of Mr. Justice Kenny of the Supreme Court in the case of S.v.S. reported in 1976, when he said that section 13 did not have the effect of fossilising the law. Other judges have expressed other views with regard to section 30.
The report also refers to the comment by Mr. Justice Kenny with regard to the advances made in psychological medicine since 1870 and the necessity to frame new rules to reflect these. There have been substantial advances in this area, advances which have been reflected in the developing economic jurisdiction in this area. I believe that the civil law must reflect these changes. The civil law must reflect the best way of determining an individual's maturity or an individual's ability at the time of marriage. I believe that our existing laws governing nullity do not do this, and second — and more important — I believe that our existing laws with regard to nullity are in a state of confusion. As such, they tend to be difficult for lawyers to interpret and difficult for people to understand. I would simply say that legal provision is urgently required there.
I would like to move on from there to another question area which is basic to the whole debate, that is the question of divorce proper. I believe that the existing constitutional prohibition should be removed. I am not satisfied that the time is right. I simply want to see the prohibition removed at a time when a referendum will be successful. I certainly welcome the approach of the joint committee with regard to this issue. I welcome the fact that their suggestion simply deals with the constitutional prohibition and that they specifically decided not to express any view on the wider question of the nature of any subsequent divorce legislation, and whether or not there should be such legislation. I welcome the fact that they limit their views to the removal of the constitutional prohibition. I quote from paragraph 7 (8) 29 of the report when the committee say:
Having considered submissions and bearing in mind the factors set out above, the Committee is of the view that a referendum should be held; this was a decision of the majority of the committee. A minority of the committee believes that this matter should be decided by the Oireachtas as a whole without a recommendation from the Committee.
The matter will have to be decided by the Oireachtas in any event before it is put to the people. The only worry I have, in so far as this enabling legislation is concerned, is on a question of timing.
I want to mention another matter that the report makes some reference to and that is the whole question of the nature of our family courts. In chapter 9 the joint committee deal with this issue. That chapter is headed "Towards a New Family Court Structure". I agree with the contents of paragraph 9 (2) which deals with the objectives of a family court. The joint committee specify five objectives which I will read as follows,
(1) To provide a sympathetic means for the taking of decisions in regard to family disputes, which causes the minimum disruption and upset for the members of the family.
(2) To safeguard the welfare of children affected by marriage breakdown or family difficulties.
(3) To reduce the adversarial element inherent in the resolution of family disputes.
(4) To provide a uniform approach in the adjudication of family disputes.
(5) To minimise the costs involved in family proceedings.
Essentially, I find little to quibble with in those five objectives of a family court. I am not necessarily satisfied that we will achieve this objective by establishing a new form of tribunal or a new form of structure outside our existing courts.
One of the problems we are facing in this society is the fact that we have failed to inject any capital whatsoever into our existing court structure. We have one court structure which serves criminal matters, which serves civil matters and which serves family matters. The actual structure that is there is totally deficient in a structural sense, in the sense that no money has been injected into that structure to make it work in the eighties. It appears that the Oireachtas have got over this difficulty at various times by simply establishing new tribunals outside the court system, as we know it today, for the purpose of dealing with particular problems.
We have the planning board; we have the whole flotilla of tribunals established under labour legislation and, of course, more recently, we had the establishment of the rents tribunal by the Houses of the Oireachtas. Indeed, when we were dealing with the legislation setting up the rents tribunal there were many people in this House who justified the establishment of that tribunal on the basis of the horrors which little old ladies encounter if they had to face courts as we know them — big, grey, drab buildings. What I am suggesting is that we inject money into our court structure to remove the big, drab, grey building aspect of it and to make the courts more acceptable physically to the population that they serve for all purposes. I believe that if we do that and if we inject the kind of capital that is needed into our court system, it is then that we could superimpose within our existing court framework, a proper family court structure.
My suggestion in this regard — and I am bearing in mind the five objectives of a court structure which the joint committee mentioned and which I quoted earlier — is that we should, within the existing court structure, do a number of things. We should, first try to ensure that all family matters at first instance can be dealt with by the two lowest courts we have, namely, the District Court and the Circuit Court. We should try to ensure that they have the right of dealing with all types of family matters at first instance. At the moment many of the remedies which are referred to in the report of the joint committee in chapter 7 — which is an excellent section dealing with legal remedies — are only attainable if one goes to the High Court.
These remedies should be available at Circuit Court level. We should incorporate within the existing structure a rota of circuit-going judges and justices who would deal with nothing else other than family matters. By doing that, one would achieve a level of expertise and of consistency. By doing that, with the proper court framework in a physical sense, these matters could be adjudicated upon in surroundings which would not be intimidating or frightening and which would not have the effect of failing to get from the parties involved the true causes and reasons for the problems being adjudicated upon. If anybody experiences the nature of court rooms, certainly in rural Ireland, where family cases are dealt with, one certainly would see the need for change here. I do not believe that the change is going to be achieved by establishing a new structure. It is best achieved by properly updating and regulating the existing structure.
I conclude by expressing the hope that when the report is being debated in the other House, following that debate, the Government will immediately set in train positive plans to ensure that the report receives a wide debate in the country and also positive plans to legislate for certain pertinent matters, some of which I mentioned and which were raised by the joint committee in the course of their deliberations.
We have had a long and a good debate on this report. By my reckoning 26 Members of the House have spoken. The debate has lasted over 19 hours. The debate has at times been fragmentary. There has been the difficulty of finding time. It has been a matter of regret to me that we were not able to make available larger units of time which would perhaps render discussion easier.
Such a long debate deserves a considered concluding speech. Accordingly, it will not be possible for me to conclude this debate adequately without reviewing the major points of the debate. That is what I intend to do. Before going on to do this review, I would like to take up initially the question of the form of the motion that is before the Seanad, because there was a comment during this debate on the actual form of the motion. Following the presentation of the report of the joint committee a motion was put down taking note of the report. The comments made seem to suggest a particular attitude towards this report as if it were being treated as something trivial. I want to stress straightaway that that is not so. The motion that was put down was the appropriate parliamentary motion which is put down on the reports of all joint committees. It is put down in the expectation that it would allow for an adequate debate in which different views can be expressed, on which there can be a variation of emphasis by various Members of the House in regard to the matters in the report. That this is the customary form of motion is reflected by today's Order Paper.
If anyone examines our Order Paper for today, or any other day, they will find a very large number of motions of this type. I may have miscounted, but by my reckoning there are 11 motions on the Order Paper today in the names of the Leader of the House and the Deputy Leader of the House, taking note of various reports of joint committees.
There is nothing significant about the fact that the original motion was put down in this form. The purpose of such a motion is to allow for a full debate. A Government motion is put down so that there will not be restrictions on the debate. This has been clearly shown in the present instance, when the time for this debate will have occupied about seven times the amount of time that would be allowable under a Private Members' Motion. The form of motion used is designed to allow for a full debate. It is not at all designed as a type of motion which would be appropriate for testing differences of opinion. Once an amendment had been tabled to this original neutral form of motion, that motion was no longer suitable as the basis for the debate. This, automatically, resulted in the withdrawal of this neutral form of motion and that automatically involved the withdrawal of the amendment that had been put down. The new motion that is before us, No. 1 on the Order Paper today, was proposed by me as Leader of the House, and it was aimed at reflecting the probable majority opinion of the House as a whole. Whether it does or does not reflect the majority opinion of the House will be revealed later this evening. In everything that was done in regard to the original motion and the present motion, normal and appropriate parliamentary procedures were followed.
As indicated, we have had a substantial debate, with almost half the Members of the Seanad contributing to it. Anybody listening to the debate would realise the wide scope of the subject matter of the joint committee's report. This has, indeed, been reflected. There was a tendency from time to time, as was mentioned earlier here this evening, that the subject of the protection of marriage tended to get lost from time to time and be replaced by the more controversial subject of dealing with the breakdown of marriage only through the dissolution of individual marriages. Nevertheless, I believe that all aspects were adequately discussed.
The Seanad has in this debate made a very useful contribution to the wider public debate which we believe to be necessary and which is called for in the terms of the motion. I would like to advert to a point made earlier this evening by Senator Tim Conway, who said that widest possible debate has taken place. I cannot agree with that conclusion of his. I cannot agree that even though we have had 26 Senators contributing to this debate that this represents the widest possible debate in the public sense. One cannot help but be reminded of the words of Abraham Lincoln. "The world will little heed nor long remember what we say here". It was not true of what Lincoln went on to say in the remainder of that remarkable speech. I fear it is very true of what we say here in this House. I would say in that connection that I am glad to acknowledge on behalf of the House as a whole the kind remark of the Taoiseach on television recently, where he indicated in regard to this very debate that the debates of the Seanad on this and on other matters are undervalued. Even if what we say is little heeded, we have a real contribution to make, and the Seanad has discharged that duty.
In concluding this debate I do not attempt in any way to make a summary of the debate. I would hope that parts of what I have to say will synthesise some of the more important points raised and intend at the same time to give my personal reactions to them. Accordingly, I intend to speak first of the general welcome the Seanad has given to the report of the joint committee and to deal with the major criticisms of the report which have been raised in the debate. After that I propose to go on and deal with the subject matter of the debate under four headings. The question, firstly, of marriage and marriage breakdown; secondly, of the protection of marriage; thirdly, I want to deal with non-divorce remedies; and, fourthly, I want to deal with the question of divorce. When one takes things in that order it is following not only the order of the report of the joint committee but also it is the order which was adopted by most Senators in the discussion.
Senator Conway said earlier that nobody believes in divorce for the sake of divorce; it is a question of a last remedy. In following this particular order I lay myself open to the charge, which was made against me in a newspaper summary of the initial stages of this debate, when the main point made in regard to my speech was that it was only late in my speech I came to discuss the question of divorce. I make no apology for that. Again, it will come late in my speech because the question of divorce must come very late in the history of any individual marriage. On the question of protection, a number of Senators have said that the best way of dealing with the problem is to try to prevent it and to try to reduce the incidence of it. That does not mean in any way that the question of divorce should not be faced or should not be considered with all due care in the debate in this House.
The motion first suggests — this is not a matter of contention — the welcoming of the joint committee report. In this debate there was a very general welcome for the report, but there were minor criticisms. These arose under three particular headings — criticisms of the format of the report, criticisms of some of the contents of the report and criticisms of the statistical parts of the report. I would like to discuss briefly each of these. In regard to the question of format, in opening this debate I criticised the main structure of the report and criticised the lack of balance between the chapters. This structure makes the report more difficult to read. The main problem here is, of course, the vitally important chapter 7. Chapter 7, which is one of eleven chapters, occupies one-third of the pages of the report. I am not saying this in carping criticism of this particular joint committee. I am saying that it is an indication of a reaction to this particular circumstance, so that it is something that can be avoided by other joint committees. If we are to make the system of joint committees work we should speak not only of what is in a report but speak in terms of the process generally. The criticism of the format was also made by Senator Jack Fitzsimons. The Senator said that this report would be much more valuable if there had been a precis or a synopsis. There is a good deal of merit in that, though one must appreciate the difficulties of attempting a synopsis of such a complex report.
Senator Mary Robinson suggested that the impact of the work of the joint committee might have been greater and the ideas might have been more conveniently discussed if there had been separate reports rather than trying to put everything between the covers of one book. It is right that these criticisms should be made, not that this particular group of people will come together again to deal with this particular problem but rather so that there can be the reaction of this House of the Oireachtas to the manner in which the joint committee discharged its function.
In regard to the question of the content of the report, the only serious criticism here arises in regard to the question of alcoholism and marriage breakdown. This section of the report was criticised by a number of Senators — I give them in the order in which they spoke — by myself, by Senator Jack Fitzsimons, by Senator Katherine Bulbulia, Senator Jack Harte and Senator Catherine McGuinness. All groups in this House were represented in the criticisms of paragraph 4.3.10 of the report. Senator Jack Fitzsimons was critical of me in that my criticism of the paragraph had been too mild. He criticised the report on this point of underestimating — in his opinion and in the opinion of a number of Senators — the contribution of alcoholism to marriage breakdown, not merely as something that intensifies it once it happens but as being a root cause. He described the report as being "weak, insipid and not related to reality". Senator Bulbulia said that alcohol has extraordinary effects on marriage and on marriage relations. When we are facing the question of marriage breakdown, let us face also the problem of alcoholism. Let us try to see clearly the relationship between the two. There is, at very least, a lack of clarity in paragraphs 4.3.10 and 4.3.11 on page 26, in regard to this particular problem.
It is right that in a debate of this type, when Senators disagree with a statement of a joint committee, that this should be said clearly, with no disrespect to the committee in any way. We will make the system of joint committees reporting to the Houses of the Oireachtas work if we take the reports seriously enough to criticise them. If we were not taking this report seriously, we could have just nodded and said everything is all right.
The third major area of criticism was in regard to the question of statistics. Senator Seán O'Leary expressed disappointment at the manner in which this matter had been handled in the report. He was critical that the joint committee had not made any attempt to investigate for themselves the question of the extent of the problem or, indeed, in some respects the nature of the problem. This is a legitimate criticism, particularly as the joint committee in paragraph 3 of its orders of reference was specifically empowered:
To engage the services of persons with specialist or technical knowledge to assist it for the purpose of particular inquiries.
There was no lack of competence in the committee to undertake such inquiries. It is of course possible that the unfortunate timing in regard to the committee's length of operation may have had an effect here. The committee were originally asked to report within 12 months. It may well be that with such a time span they felt it would not be possible to get such results in time to be useful. As we know ultimately the length of their operations was extended to 21 months. If that had been anticipated from the beginning it would have given ample time.
I am dwelling on this point which was raised by Senator Seán O'Leary and will take it up again in the debate because I think it is a particularly important point. The size and nature of the problem is an important element for many people in this country who are being asked to make up their minds on the problem. I intend to return to this afterwards but I will merely indicate now that if you take a point of view on the one hand that divorce is a basic right unconditionally then, of course, it does not matter how few people are affected by the denial of that right. If you take it, on the other hand, that divorce is a basic social evil then it does not matter how many people are affected, you will not be acting. If you do not hold either of those two positions but rather approach this problem from the point of view of where the balance of the common good is, then it becomes vital to know both the nature and the size of the problem.
So much for the first general point on which I think is the agreement of this House, to the effect that this report despite all the false finishes we can say to the committee amid all the difficulties it was a job well done.
The second part of motion No. 1 urges the widest possible debate on the recommendations of the report. I want to talk about that for a few moments now. In particular, I would like to comment on what Senator Shane Ross said in moving the amendment. I quote from volume 108, No. 12, column 1174:
We are no further forward than we were two years ago, not one inch and not one day forward.
I do not think that is true. Perhaps more significantly, the seconder of the amendment does not think it is true either because Senator Brendan Ryan here this afternoon in the course of the debate referred to the fact that there had been through the time of the work of this committee a modification of the views of the members of the committee themselves. I think there may not have been as much progress as many of us would wish but to say that there has been no progress is to undervalue what has happened.
We have the report. We have the evidence and, I was going to go on and say, we have the submissions except the fact is that we do not. The Members of this House do not have access to the submissions that were made to that committee. The position, as I understand it, is — here again there can be minor criticism of the committee — that the committee before completing their work did not make any arrangements for the submissions which were made to them or such of them for which it would be appropriate to be done, to be made available in the Library of the Houses of the Oireachtas for the benefit of the Members of the Oireachtas discussing this problem or indeed, for any authorised research worker who afterwards would wish to consult them.
This I think, though a minor matter, is a relatively serious one and again would direct the attention of other joint committees, who may be appointed on an ad hoc basis, to ensure that this mistake is not made. The point about the non-availability of these submissions was raised by Senator Jack Fitzsimons during the course of the debate. We have the actual minutes of evidence which were taken but those who have conscientiously studied the minutes of evidence here in preparing for speaking in this debate must have been frustrated time and time again when, for example, questions were asked in relation to page 5 of the submission of a particular group. We do not have, as Members of the Oireachtas, and the public who may wish to take an interest in this do not have these submissions available to them. There is a deficiency here. With that reservation I want to say that we have the report itself and the oral evidence. I think there has been progress.
As Senator Brendan Ryan has said there has been a modification of views among the members of the committee. I like to think that the rest of the Members of the Oireachtas who have read the report, who have listened to this debate, the Members of the Seanad who have listened to this debate, also have modified their views as a result of this two year exercise.
When we call for the widest possible debate we are calling for a widening of this process out to the members of the general public. In regard to this question of asking for the widest possible debate, again I want to make it quite clear that this does not mean an unending debate. We talked about having a wide debate to reach the members of the public who are interested. This will take time, but there is no suggestion in what has been put forward in this motion here that it should be an unending debate.
Just the lifetime of the present Government.
We will come to that point. As Senator Jack Fitzsimons said we want a serious and widespread discussion. As Senator Katherine Bulbulia said we want to avoid a debate which concentrates on the wrangling about the time of a referendum rather than about the issues themselves. Senator Mary Robinson and Senator Michael D. Higgins seem to assume that this must inevitably be a divisive debate. That is a clear reading of what they said. It is part of the duty of all of us in the Houses of the Oireachtas to do everything we possibly can to ensure that there is as little of the element of divisiveness about this debate as possible. When we ask for the widest possible debate we are asking for a debate on all the questions raised in this report. As Senator Brid Rogers said in the course of the debate, the committee was not a committee on divorce.
Senator Brendan Ryan said earlier today that it is easier to get publicity for remarks about divorce than for remarks about the non-divorce remedies or for the problem of prevention. Accordingly, when looking for a wide debate, we are looking for a full discussion of all of these aspects. Of course, the main differences that have arisen have arisen in regard to the question of the timing of action and must be discussed. Here there is a clear division between the question of the non-divorce recommendation and of the divorce recommendation.
In regard to matters other than divorce there has been an agreement among Senators that The Way Forward is clear on these. There has been virtually no dissent by the Members of this House from the proposals for the protection of marriage and non-divorce remedies. It should, therefore, be possible, irrespective of the question of the divorce remedies, to move forward.
There have been a couple of specific suggestions. Senator Catherine McGuinness suggested there should be an interdepartmental committee. Senator Mary Robinson suggested the possibility of a White Paper on general marriage law. I wonder if either of those would really help us to get an advancement in this area. Senator Robinson mentioned the time lags and delays in the preparation of legislation and I think she is absolutely right about this. Legislation on this and in other areas seems to involve delays that are very difficult to understand.
I do not know that setting up an interdepartmental committee would produce anything except a large list of objections to anything being done. I am not sure that the question of a White Paper is the way forward. If a White Paper gets action quicker let us have a White Paper. If a White Paper does not get action and merely tends to be another source of delay in regard to action in these particular areas, leaving aside the question of divorce for the moment, then for goodness sake let us not bother with the White Paper. We, as Members of the Seanad, must leave this matter to the Minister of State who is with us this evening and has been with us for a large part of this debate to take from this debate the fact that in regard to these particular areas there is no division of opinion in the Seanad. The Members of the Seanad who have spoken on this point all want action on these other matters. We must remedy the years of inaction in these other areas.
On the question of divorce, it is dangerous to concentrate unduly on this question of timing. I intend to deal with this point later when I come to deal specifically with the question of the divorce remedy. Perhaps just let us recall what has been the timing in other places. The type of approach to this problem that is now being put forward is the same approach as that in the 1969 Act in the United Kingdom. That did not happen in two years. The United Kingdom, in spite of its previous legislation on divorce had a Royal Commission on Marriage and Divorce that sat for five years from 1951 to 1955. In fact, it reached no clear consensus.
It is perhaps interesting, in view of the remarks made in the course of this debate of the intervention of the Hierarchy, that it is generally acknowledged that the 1969 Act really came on to the Statute Book as a result of the momentum created by a report entitled "Putting Asunder," which was a report of a group established by the Archbishop of Canterbury. What I want to point out here is that in the United Kingdom there was no hasty rush to judgment. There was a Royal Commission. It sat for five years and reported. Eleven years later there was the report of the Archbishop of Canterbury's group under the title "Putting Asunder". This was followed by a Government White Paper. The Divorce Reform Act was enacted in 1969 and in fact it was only four years before the main section, section 1, had to be amended. I will return to this point of timing afterwards.
I want to turn now to those parts of the debate which dealt with the question of marriage in Ireland. A number of Senators dealt with the question of the nature of marriage in Ireland. That is what we are concerned about in this controversy and debate. We are concerned about the nature of civil marriage in Ireland today. That is the concern of this House of the Oireachtas. I would be in general agreement with Senator Katherine Bulbulia when she said there is a tendency to impose a mythical norm of Irish marriage on the whole discussion. Senator Michael Ferris in a striking phrase suggested that the traditional Irish marriage could be described as a made marriage based on one-and-a-half personalities. I think there was a great deal of truth here.
This evening Senator John Browne talked of our problems in regard to marriage changing, that whereas a generation ago we were concerned with the social results of late marriages we are now having to deal with the social results of early marriages. It is interesting from a historical point of view to recall that most of those who visited Ireland and reported on the social conditions in the late 18th century and early 19th century pointed out that in contrast with the rest of Europe the Irish married far earlier. This was a result of the absolute penury of the Irish. There was no point in postponing marriage because there was absolutely no hope of economic advancement. We have to really, not just disabuse ourselves, but disabuse the general public, who will be the ultimate judges in this matter of these ideas of this mythical norm of an Irish marriage, which does not go back that far. It is not something from Celtic Ireland. It is something that perhaps was one of the results of the land settlement. It may well be that the norm of Irish marriage is something that came in with the settlement of the land question. However that may be what we have got to be concerned with Irish civil marriage as it is today and as it affects both men and women. In this connection Senator Jack Fitzsimons had some interesting remarks to make about the differing effects of marriage on men and women. That is the first thing that must really be clarified.
The second thing that must be clarified is the question of the extent of marriage breakdown in Ireland today. This is dealt with in paragraph 5.5 on page 28 of the report. This is something which has been accepted by all the Members of the Seanad. It is no harm to quote what it says in paragraph 5.5 of the report. We are talking of a unanimous conclusion of the joint committee regarding the situation.
The Committee recognises that an increasing number of couples are separating and that the separation of spouses is essentially a public demonstration of the end of a marital relationship. The committee also recognises, however, that many couples where marital relationship has irretrievably broken down are still residing under the one roof, and that, although residing together are effectively leading separate lives.
This question creates a real difficulty in finding what is the extent of marriage breakdown. The social pressures and social norms that tend to make people disguise the reality of the breakdown of marriage can still operate very powerfully. That is why I think the question of the nature and the extent of the problem is a central one to the public discussion. A certain amount of information is available from the submissions to the joint committee. These seem to indicate that the extent of marriage breakdown here is approximately comparable to that in Northern Ireland. This is a significant fact due to the circumstance that in Northern Ireland divorce has been available for well over a decade and that there is still no evidence of the floodgates that are supposed to open.
In the course of the debate a number of Senators have referred to this question of the extent of marriage breakdown. Senator McGuinness cited the increase in court activity, which is a clear reflection of the problem. Senator Robinson pointed out the clear statistic that is available showing that between 1971 and 1982 there has been a 25 per cent drop in the marriage rate. Senator Bulbulia talked about the increasing number of families with no legal protection. In the debate there was very general agreement here.
What I have been talking about up to now has been the question of the nature of the problem. I will be returning to discuss further the question of the nature of the solution being dependent to a large degree on a clear understanding of the nature of the problem. If we can be clear about the present condition of civil marriage in Ireland today then we can begin to talk of the question of the protection of marriage, to talk about non-divorce remedies and we can consider in an objective fashion the question of the remedy of divorce.
I want to turn first to the question of the protection of marriage. There has been emphasis in the debate, as there was in the report, on the prime importance of education from the earliest age, not just for the relationship of marriage but for personal relationships generally. This is a theme that was also touched on in the first report of the Joint Committee on Womens' Rights, which dealt with the question of education. There was great stress in that report of the need to develop such relationships.
Senator Bulbulia mentioned that here there are, as in so much of education for life, the complementary roles of the parents and of the teachers, of the school, most other Senators who discussed it tended to concentrate on the question of the formal education in the schools — Senators McGuinness, Harte and Lanigan spoke of that. Senator Fitzsimons suggested that it was not the amount of education that was important in this regard but the type of education. He suggested that the position in a divorce situation was that many people with a higher degree of education seemed to be more prone to divorce. I am not sure that that would be borne out by the statistics. There may be more visibility in regard to such people, but most of the social studies that have gone on in any of the countries where there is divorce legislation would indicate that there is a higher incidence of divorce among those classes in society more subject to general stress. I mention that as an area in which there can be differing views.
There was a good deal of discussion in regard to the conditions which the State might establish as part of the protection of marriage. A number of Senators spoke about the question of age and about half a dozen Senators gave blanket approval to what was suggested in the report. There were some dissentients. Senator Browne in the debate today raised the question of whether the age of 18 was a high enough age, due to the problem of early marriages and due to the high incidence of breakdown in such marriages. Senator Seán O'Leary queried the worth of having the transition from 16 to 18 years where the permission of the court could be given. He indicated that the need for this had not been proven and suggested that in most cases the court tends automatically to give such a permission and that this should be taken account of.
Would the Senator like to move the adjournment?
Whether I would like it or not, I accede to your wish that I should move it.
Acting Chairman
I would like to remind the House that this motion will be resumed at 8 p.m.
Debate adjourned.