The purpose of the Bill is to enable a referendum to be held on whether the constitutional prohibition on the enactment of divorce legislation should be removed. It is, of course, the people who, if this important Bill is passed by both Houses of the Oireachtas, will decide whether we should have divorce.
Senators will recall that the report of the Oireachtas Joint Committee on Marriage Breakdown was debated at length in this House and in the Dáil some months ago. That report sets out clearly the main arguments for and against the introduction of divorce and it was the view of a majority of the committee that a referendum should be held. There was in both Houses a general welcome for the report. The terms of the motion moved by Senator Dooge in relation to the Seanad debate on that report urged the widest possible debate on the recommendations contained in the report and even though that was part only of a wider debate I should like to say that it played an important and valued role.
The debate on divorce itself has gone on for some years now. In 1967 a committee of the Oireachtas had something to say about the prohibition on divorce in our Constitution. In more recent times it has been discussed not only by the Oireachtas Joint Committee on Marriage Breakdown but by the New Ireland Forum also. The issues are by now well identified and the feelings and views of different groups are, I would suggest, well known. Senators will be aware also that, before bringing forward the present proposals for the approval of the Government, the Taoiseach, accompanied by the Minister for Justice had full discussions with all the main churches on a range of topics arising from the Joint Committee's report dealing with marriage, including the question of divorce.
All who have contributed to the debate have recognised that there is an increasing incidence of marital breakdown in our modern society, however much they may differ on what should be the correct response to that unfortunate development. For their part the Government in circulating the Bill have taken the view that the balance of social good would be served by legislation which would permit divorce in cases where the marriage has clearly come to an end and where the interests of dependent spouses and children are protected. The fact that marriage failure is increasing and can be expected to increase further whether or not divorce is introduced is something that can no longer be ignored. The Government have also taken the important step of publishing a statement of intention — something that was suggested by a number of Senators in their debate last year — describing the type of divorce legislation they propose to submit to the Oireachtas should the proposal to amend the Constitution be approved by the people.
In deciding on the form of the constitutional amendment that should be presented and in forming their further proposals, the Government have taken fully into account the views expressed by the various persons and groups who have contributed to the debate, including the views expressed by the various churches in their meetings with the Taoiseach and the Minister for Justice. I should like now to discuss the details of the Bill and to say something about the Government's further proposals.
The Bill before the House proposes that the Constitution should be amended by the deletion of subsection 2º of Article 41.3º, which states that no law shall be enacted providing for the dissolution of marriage, and its replacement by a new provision. It seemed to the Government — and this was a view expressed by the Oireachtas Joint Committee also — that simply to propose the deletion of the present prohibition without putting anything in its place would run the risk that any subsequent divorce legislation that might be enacted might be seen to be in conflict with other provisions of the Constitution guaranteeing the protection of the family and marriage. A provision specifically enabling divorce legislation to be enacted was therefore necessary.
Also, the Government felt it was necessary that the replacement provision should indicate clearly the type of divorce legislation that the Oireachtas might enact. Throughout, the Government were concerned to ensure that the constitutional amendment and any further divorce legislation they would subsequently introduce should reflect the principle that divorce was to be obtainable only in restricted circumstances where it was clear beyond doubt that the marriage had failed and that proper provision had been made for dependent spouses and children.
In line with that view the provision proposed for insertion in the Constitution would allow divorce only where a court was satisfied that the marriage had failed, that failure had continued for a period of, or periods amounting to, at least five years, that there was no reasonable possibility of reconciliation between the spouses, that any other condition that might be prescribed by law had been complied with and that adequate and proper provision, having regard to the circumstances, is made for any dependent spouse and children.
The use of the words "failed" and "failure" rather than words such as breakdown has been commented on. The concept of failure was used because it involves a sense of finality which is not as adequately expressed by, for instance, breakdown, for what has broken down can be mended. The sense of finality is reinforced by the provision that the court must be satisfied that there is no reasonable possibility of reconciliation between the spouses.
The conditions set out in the proposed amendment are cumulative and must, of course, all be complied with before the court could be satisfied that a decree of divorce should be granted. They are all conditions to which the Oireachtas would have to have regard in considering the type of divorce legislation that might be enacted and are conditions which, of course, could not be diluted by subsequent legislation. They indicate clearly that what is intended is that divorce would be available only in limited circumstances where it is clear beyond doubt that the marriage has come to an end, where that fact has been proved over a period of five years and where proper provision has been made for dependants. The requirement that such other conditions as may be prescribed by law have been complied with means that the Oireachtas may impose other restrictions if it so desires and the legislation which the Government propose to introduce, in the event that the constitutional amendment is approved, will contain such further conditions.
The provisions of the Bill are designed so as to strike a proper balance between the need to include in the Constitution a clear statement of the type of divorce that would be acceptable to the people and the need to allow the Oireachtas freedom to add, should it so desire, other and additional conditions which of course could never detract from the effect of the constitutional provision. I think it will be obvious to Senators that the proposed amendment and the further proposed legislation which the Government have announced, and which I intend to describe briefly, do not amount to unrestricted divorce, as some people seem to suggest.
The Government are not "anti-family". On the contrary the Government are fully committed to the protection of marriage as far as that can be realistically achieved and the legislation the Government will submit to the Oireachtas if the proposal in the Bill is approved in a referendum will recognise the need to protect marriage and to minimise as far as possible the effects of granting a divorce. The Government in their statement also referred to other legislation proposed in the family law area with a view to the protection of the family.
Briefly, that legislation will provide that parties to a marriage who at the time the legislation is passed can prove that they have been separated for five years will be able to apply for a divorce. In other cases, a decree of judicial separation of a separation agreement which had been approved by a court will have to be in place for at least two years before a divorce can be sought and the parties will have to prove that they have been separated for five years.
I would like to stress that requirement of five year's separation because it has been represented — misrepresented is probably a more correct description — that the Government statement was unclear on that aspect and envisaged a situation where a divorce could be granted on the basis simply that a judicial separation had been obtained two years before the petition for divorce was sought. Anybody who reads the Government statement will be left in no doubt that in all cases a period of separation totalling five years would be required before a divorce could be granted. I am commenting specially on this aspect because of the misrepresentation that has been made.
Applications for divorce as well as for a judicial separation or for an order approving a separation agreement would be made to a family court, which would be presided over by one of a number of Circuit Court Judges specially assigned for the purpose. The court would address itself to the possibility of reconciliation or, if reconciliation is not possible, to whether mediation or counselling procedures, designed to achieve the maximum agreement between the parties on the terms of the separation, should be invoked to assist the court in coming to a decision on the various matters that fall to be settled. The court would make use of existing counselling services or of new services which would be provided should such further services be required.
One of the central aims of the Government is to ensure that the interests of dependent spouses and children are as fully protected as possible. To enable that aim to be achieved the Family Court would have full powers to make orders in relation to maintenance, children and property owned by the spouses including the family home. The use of counselling services will be aimed at securing agreement between the spouses on the various issues arising, as amicably and as free from bitterness as possible. In regard to couples who are not separated at the commencement of the legislation the requirement that a judicial separation or an order approving a separation agreement must first be obtained means that questions as to maintenance, children and property will have been ruled on by a court long before a divorce is sought and the court hearing an application for divorce will have ample opportunity to consider the effectiveness of the arrangements made and whether they should be changed.
I would like to tell the House the Government also intend to extend the grounds on which a decree of judicial separation can be sought. The present grounds of cruelty, adultery, or unnatural practices are unduly limited. The additional grounds to be proposed will be desertion — including constructive desertion — separation for three years or separation for one year with the consent of the other spouse.
In view of various statements and comments that have been made in regard to the effect of divorce on the rights of the family and children I would like to take the opportunity of setting out the relevant facts for the record and for the benefit of Senators who may wish to consider and to discuss the rights in question further.
The constitutional amendment proposed in this Bill will not affect the constitutional protection of the children of the "first family". The constitutional and statutory rights of the children of the first family will remain entire and unaffected. It has been alleged that the proposed amendment would remove all existing constitutional protection under Articles 41 and 42 from the first family and transfer it to the second family. That is simply not true. Those Articles are important because they prevent the State from enacting legislation in conflict with the principles stated in the Articles. So far as the Articles enjoin the State they are, however, not stated in precise terms. Thus, while it is true that such measures as a wife's right to a share of her husband's estate or her right not to have her home sold without her consent are in full accord with the constitutional pledge to guard the institution of marriage, they are primarily rights which were granted by Statute, in the one case by the terms of the Succession Act, 1965, and the other the Family Home Protection Act, 1976. If these Statutes had never been passed it would be difficult to argue that such rights were inherent in Article 41. Conversely, if the Oireachtas were to repeal both Statutes in the morning it would be difficult to argue the case that they were precluded by Article 41 from so doing.
The amendment now proposed will permit the dissolution of marriage, that is to say, the relationship between the spouses. It does not follow that such a dissolution dissolves any of the rights conferred by Articles 41 and 42 on parentsvis-à-vis their children or children vis-à-vis their parents — the sole dissolution being that which has taken place in the relationship between the spouses. Article 42.1, for instance, after acknowledging that the primary and natural educator of the child is the family, goes on to respect the “inalienable right and duty” of parents to provide for their education. Parents remain parents after a divorce. That divorce can in no way diminish their inalienable rights and duties in relation to their children. Notwithstanding that the marriage may be dissolved the children — who are children of a valid marriage — continue to have all the rights in relation to their parents deriving from Articles 41 and 42, and the parents retain all the rights and duties in relation to their children arising under the same Articles. The mere fact of dissolution of a marriage does not alter this. Nobody has ever suggested that the dissolution of a marriage by the death of one party alters the constitutional rights or duties of the remaining party and his or her children, nor that the recognition of a dissolution of a marriage under the provisions of Article 41.3.3º as it stands can detract from or alter the constitutional rights or duties of the parties to that marriage in relation to their children.
All the statutory rights which children have will continue after dissolution. The children of divorced parents will remain entitled to inherit on the intestacy of their parents and will remain entitled to apply to have proper provision made out of the estate where such proper provision has not been made by will or otherwise. In some cases the children's shares will be enhanced: for example, where the divorced parents do not remarry and there is no new spouse to claim a share, the full estate would go to the children on intestacy. In other cases, the children of the first marriage may have to share with children of a new union, but that would be the position anyway, even if no divorce were granted, once the proposals of the Government enshrined in the Status of Children Bill which has just been circulated have been given the force of law. It would also, of course, be the case if there were further children of the existing marriage. The important fact is that the children will not lose their rights.
It is clearly wrong to suggest that any of these statutory rights could be regarded as unconstitutional. As the offspring of married parents and therefore members of families based on marriage such children will, for the reasons already stated, retain their constitutional rights under Articles 41 and 42 even when the ties between their parents are severed. In addition, children of divorced parents are being given an added constitutional protection under the Government's proposal in that the court is required to be satisfied, before granting a dissolution, that adequate and proper provision is made for them.
It is quite true that a normal consequence of divorce is that a person who ceased to be married to another, because the marriage was dissolved, would not be regarded as the widow or widower of that other person for the purposes of succession. There may or may not be different views as to the justice or fairness of such a situation but there is a great deal of support both in the common practice of people and otherwise for holding that it is an acceptable and realistic solution.
I intend to come to the question of financial orders which the court will be empowered to make on granting a divorce but the provisions will be framed so that the courts can take account of loss of expectations, whether it is a question of succession rights or any other expectations, for example, a widow's occupational pension on the death of the other spouse and, where this can be done and where it is appropriate to do so, the court will be able to give compensation. That may not be enough and the Government are prepared to give consideration to any proposals which might be brought forward to do something more in these cases.
A similar point can be made in relation to the other statutory benefits that a wife would lose on divorce. In relation to each of these she would be entitled to a different but equally valuable right. She will lose her right to maintenance as a spouse but instead will be entitled to alimony as a divorced wife. If she loses the benefit of a dwellinghouse the court will require the payment of a sufficient sum to compensate. Alternatively the courts may require, having regard to her circumstances and those of the children, that the house be transferred to her as part of the adequate and proper provision referred to in the constitutional amendment. She will have those rights not merely as statutory rights but as constitutional rights.
It is a common condition in the standard form of separation agreement used by separated persons that they each give up succession rights on the death of the other. This means that neither can claim a legal right share under the Succession Act where a will is made excluding him or her from benefit. This is something that is commonly accepted by people coming to an agreement to live apart. Each spouse must give up rights in a number of areas, including custody of and access to their children, and as part of that process they usually deal with succession rights in the way I have indicated. The law, of course, does not allow them to give up irrevocably their right to maintenance against each other but they may give up their legal right share under the Succession Act, and commonly do.
At present, when a decree of judicial separation is given against a spouse, that spouse loses succession rights to the estate of the other. That at present affects only one of the spouses, who might be called in the context of the present law the `guilty' spouse. However, both the Report of the Law Reform Commission on Divorcea mensa et thoro and Related Matters and the report of the Joint Committee on Marriage Breakdown dealt with this question and proposed that a change from the present position was desirable. The Law Reform Commission recommended that one consequence of a decree of judicial separation should be that each spouse would be precluded from taking any share in the other's estate. The Joint Committee recommended that the court should have the power to vary or discharge a spouse's right of succession following the grant of a decree of judicial separation. Both sets of recommendations indicate that the loss of succession rights when a marriage has for all practical purposes come to an end is accepted as a normal development.
Even if, therefore, we were not now dealing with divorce but, say, debating the reform of the law on judicial separation, I would probably be standing here proposing that succession rights should be extinguished once the spouses separate. That is to put the matter in a proper context.
The amendment proposed in the Bill would impose an obligation on the court to be satisfied that adequate and proper provision, having regard to the circumstances, is made for dependent spouses and any dependent children before a divorce could be granted. As I have stressed earlier, it is a central concern of the Government that dependants of divorced persons should be protected as far as it is possible to achieve that. The proposed legislation which the Government are committed to bringing forward will, of course, reflect the requirement in the proposed amendment that dependants must be protected — it could not, of course, do otherwise. To enable that position to be achieved the Family Court will be given full power to make suitable orders dealing with financial and property matters.
At present a court cannot, except in some limited circumstances, change the beneficial ownership of property of the spouses — it can only decide a dispute as to who owns shares by reference to, say, payments made towards its acquisition or agreements made between spouses. The exception to that general position arises in the context of subsection (1) of section 5 of the Family Home Protection Act, 1976 which provides that where one spouse is engaging in such conduct as may lead to the loss of any interest in the home with the intention of depriving the other spouse or a dependent child of his or her residence in the home, the court may make such order as it considers proper for the protection of the home. In recent years there have been two decisions of the High Court in relation to that provision under which the family home has been transferred to the wife. These orders are, however, restricted to the special and limited circumstances set out in the provision and the necessary intention on the part of the respondent spouse must be proved.
Under the proposals the court will have a general power to transfer property between the spouses to enable justice to be done. In coming to its decision as to what property orders should be made, say, for a dependent wife, the court will be able to take into account any relevant matters which can support the wife's claim. If she has given up her job on marriage to take care of the home and rear children, that will obviously be relevant. If through giving up her job and devoting her time to the care of the family she would find herself after divorce at a severe disadvantage in not having had the opportunity of developing a career, that would merit special consideration. If she is still rearing young children, that would be a reason, apart from others, for transferring full ownership of the family home to her.
I want also to say something about the family home. It has been said that divorce will destroy important rights in the family home, and that in some way the second family might have some claim or some prior claim on the family home in preference to the first family.
The position is that the question of the family home will be, perhaps, the most important question that in the normal case will require to be settled by the court faced with an application for judicial separation, a separation agreement to be made a rule of court or a divorce. The question of ownership of and rights in the family home will have been settled in most cases at the stage when a judicial separation is sought, or a separation agreement is drawn up, long before the question of divorce will arise. Where justice requires it and provision cannot adequately be made otherwise the family home can be given to the wife who needs it. Where it appears to the court that that is necessary because of the presence of dependent children or for other reasons, the court will make a suitable order. The point is that by the time a divorce is granted — at the latest — and usually much earlier, questions about the family home will have been decided by the court having regard to the needs of justice to the dependants and the matter will be finally decided before a second marriage and family come into the picture. I think we can rely on the Family Court to make proper decisions in this important matter and to suggest that such final decisions can be upset later is wrong.
It is relevant, since I am talking about the family home, to remind Senators that legislation is being prepared in my Department to provide equal rights for both spouses in the ownership of the family home. That is another concrete example of the Government's commitment to protect the family as far as that can be done. The legislation will not only strengthen the position of a dependent spouse where the spouses are living happily together but will place her in a much stronger beginning position if the spouses unfortunately find themselves in the position of having to come to an arrangement to live apart.
The truth is that these problems about succession rights, maintenance, the family home and so on arise wherever there is a breakdown of marriage. They arise under the present law and would arise, and indeed be exacerbated, under certain tentative suggestions that were made in the other House for extended nullity and judicial separation.
Those suggestions appear to have arisen from confusing divorce, which has effect only from the time of the decree, with nullityab initio which decrees that there never was a marriage. Children of a marriage which ended in divorce would, of course, always remain children of that marriage under the Constitution and to say, as has in fact been said, although not in this House, that they would become constitutional orphans is absolutely without foundation. I should like to mention the other case that has been referred to in this connection and that is the case of nullity. Children of a marriage that has been the subject of a decree of nullity, that is declared void, will under the proposals in the Status of Children Bill have the same rights in relation to their parents as children of any marriage. However, the position of the spouses will be quite different where a nullity decree is granted from that position following divorce. A nullity decree amounts to a declaration that no marriage existed at any time. I am not being contentious about this and I want to make the point quite sincerely, but I must point out that it is extremely dangerous to suggest, as has been suggested, that as part of the remedy we would put some spouses by the route of nullity into an even more disadvantageous position than they are in at the moment. We do not intend to do that and, in a sense, that is a concern that goes to the heart of the issue we are talking about.
I do not believe — I do not intend to prejudice any discussion we might have in the House in relation to nullity — that any extension or forcing of the definition of nullity can in any way constitute an alternative to divorce. For anybody who is looking at it in that way I ask them passionately and sincerely, to think again because they are in danger of doing a grave injustice to the people in question.
I address my remarks to any Senator who may take that view and, indeed, to anybody outside the House, or in my constituency, who might be taking that view.
The courts will have power to make orders as to the custody of and access to the children and the court can be relied upon to deal with these questions with the care it traditonally exercises in these cases, deciding the matter having regard to the best interests of the children as the first and paramount consideration.
The courts will, of course, have full power to order suitable maintenance for the spouse and dependent children. Maintenance must be a central feature of any provision that can be made, and unfortunately the continuance of maintenance payments can depend on the goodwill of the person making the payments and can be evaded. In suitable cases where this is possible and appropriate the court may order the maintenance to be secured on property or by the allocation of a fund out of which the maintenance can be paid to ensure that it will continue without default. The court will also be empowered to order lump sum payments. I must point out that the draft amendment contained in the Bill will impose an obligation on the court to be satisfied that adequate and proper provision, having regard to the circumstances, is made for dependent spouses and for any dependent children before a divorce will be granted. We are also considering legislation that will deal with the question of enforcing maintenance orders, taking account of the possibility of spouses absconding to other countries to evade their responsibilities. Senators may be aware that since 1974 we have had reciprocal arrangements with the United Kingdom providing for the reciprocal enforcement of maintenance orders between the two jurisdictions, the purpose of which is to prevent people here absconding to England to evade their responsibilities andvice versa. I am also happy to be able to inform the House that the legislation to give effect to the EC Convention on jurisdiction and enforcement of judgments in civil and commercial matters, which provides for the reciprocal enforcement of maintenance judgments among the member states of the Common Market, is in the final stages of being drafted and I hope to be in a position to introduce that legislation very shortly.
Some concern has been expressed about the social welfare aspects of permitting divorce. The Minister for Social Welfare has dealt fully with that aspect. She has begun to have a hard look at the social welfare legislation in the matter of supporting the family. The system already supports families with a wide variety of schemes and services and in considering the situation arising from divorce, the schemes for the support of one-parent families are clearly the most relevant ones. At the same time she has adverted to concern expressed that the introduction of divorce would add greatly to the burden on the taxpayer in terms of supporting two families but has pointed out that the taxpayer is already funding marital breakdown through the deserted wife's allowance in particular.
I have dealt at length with some of the concerns that have been expressed by persons and groups about the effects of divorce on maintenace, succession rights, children and the family home. The fact is that some of these same matters would arise separately under any proposals for, say, a reform of the law in relation to judicial separation that has been recommended by the Law Reform Commission and is part of the Government's proposals for further legislation.
I think I have put the Government's case as fairly as possible and hope that I have convinced Senators of the moderate and reasonable nature of the Government's proposals. I respect the view of those on both sides of the House who stress that marriage is a permanent commitment. Nevertheless, the proposal in the Bill is carefully designed to recognise the need to protect marriage and to curtail and minimise as far as possible the effects on the dependents of granting a divorce. There are clearly many people who do not wish to go on enduring the distress of a broken marriage and wish to have another chance of some happiness in a second marriage. If we disregard their problems, we will find our laws becoming increasingly irrelevant, being brought into disrepute and lacking in humanity. The social good, surely, must not oblige us to ignore the needs of those whose marriages have failed and who wish to re-marry.
I commend the Bill to the House.