An Bille um an Deichiú Leasú ar an mBunreacht, 1986: An Dara Céim. Tenth Amendment of the Constitution Bill, 1986: Second Stage.

Tairgeadh an cheist: "Go léifear an Bille an Dara hUair."
Question proposed: "That the Bill be now read a Second Time."

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.

I would like to comment on the absence of the Minister from the House and in so doing I do not intend any discourtesy to the Minister of State. It seems to emphasise the casual approach of the Government to this Bill — the emphasis on speed rather than on the importance of the Bill. We had a contribution from the other side of the House about the tone of this debate. The fact that the Minister has not bothered to come here this morning certainly sets a tone or seems to suggest that the tone from the Government's point of view is that this is an urgent but not a very important Bill.

We must all start by accepting without question that broken marriages are a major tragedy. There are many such marriages in this country and they are probably increasing. We must, as legislators have regard to this problem. We must show that we care about those concerned. We must do what we can publicly as legislators and privately through relevant organisations or in our private capacity to help those concerned. Even more importantly we must help as far as we can to prevent these problems developing.

I accept that most of these advocating divorce do so for compassionate reasons. All those who disagree with divorce should acknowledge that the motives of those who are advocating it are worthy and that they believe that divorce will help, if not solve, this problem. On the other hand, those who oppose divorce should not be regarded as being in any way unaware or unsympathetic to the problem. Many of those who oppose divorce view it as something that is fundamentally wrong and, consequently, not valid as a solution. For others, their view is that it will not solve the problem, and that it will merely exchange one set of problems for another. Of course, in discussing this Bill in the Dáil it was pointed out — and also in the report of the Joint Committee on Marriage Breakdown — that there are many ways in which this problem can be approached and many other ways in which it can be helped.

I envy the black and white approach to this Bill which many are adopting. It is a very complex problem. There is really no easy answer. I fully appreciate the arguments on one side as well as on the other. There are strong arguments why divorce should be accepted. On the other hand there are very good reasons why it should be opposed.

I would point out that Fianna Fáil have been consistent in their approach to this problem. When the last constitutional Bill was before the House it was argued that a matter of such importance should be decided by the people where a consitutional amendment was involved. At that time many of those on the opposite side of the House were opposed to letting it go to the people. We thought it should go to the people. We agree also on this occasion that it should go to the people. For the reason we will not be opposing the Bill.

The right to divorce has been described as a civil right. Those who have no religious or moral inhibitions about the matter claim that they should be allowed to dissolve their marriages. They see no fundamental reason why that should not be done in certain circumstances. They argue, correctly and understandably, that they should not be compelled to conform to the beliefs of Catholic or any other religion. It is difficult and, in fact, impossible to resist this argument. As legislators we must consider the claims and rights of all sections of the community. We must be especially careful that minorities are not discriminated against by majorities. For this reason I support the decision to facilitate the holding of a referendum. This very important matter is for the people to decide and to make this very fundamental decision.

However, in acknowledging that, we should not blind ourselves to the fact that if this referendum is passed the perception of marriage will undoubtedly suffer. I disagree with the argument that only those with failed marriages will be affected. Marriage in general will suffer. It is pressing the matter too far and not taking a reasonable approach to suggest that it will only affect those who wish to have a divorce. The fact of the matter is that there will be a footnote to the marriage vows from now on. There will be a footnote to the vow "till death do us part and that footnote will be, "or either party decides on a divorce". That will be the position. Anyone who wants a divorce can obtain one. All he or she has to do is to declare that the marriage has failed, to live apart for two or three years, obtain a separation and two years later to obtain a divorce. This will be the position. It can be an entirely unilateral decision ignoring the other spouse. If the first spouse declares bluntly that in his or her opinion that marriage has failed, then that will comply with the requirements of the constitutional amendment and of the legislation.

In these situations no marriage is safe and consequently every marriage will suffer from the weakness in its position that would be introduced by this amendment.

I have no doubt that divorce would adversely affect the structure of society in this country. Standards and values which have existed for so long in this country and the quality of life will be seriouslfy affected. That does not mean that the amendment should not be passed. It may be that those who support this amendment are willing to take that risk and to pay that price. It should be acknowledged that that is the risk we are taking and that is the price we are likely to pay. It has been argued by the Minister for Justice and others that the first family will be in no way affected materially by a divorce. The Minister of State today dealt at great length with this problem.

Far from being reassured by what she said, I felt that she was making very heavy going. The speech merely emphasised the problems. The further the problem was investigated it seemed to me the greater the problem remained. It is true that the court will do its best to provide for the members of the first family but to say that they will not be affected in any way seems to fly in the face of reason and common sense. No doubt the court will do its best but if the spouse who has been providing for the first family, remarries he or she will have to provide for a second family and as I understand it, in due course the second family will have constitutional rights. There must be some conflict of interest there.

Apart from the legal or constitutional problem, the purely practical one is that the income of the person who is providing for the other will have to be spread through two families. Each family will certainly suffer in some way. It would be possible for only a very wealthy person, to keep both families in an entirely satisfactory manner without either of them feeling handicapped or affected in any way. The cost of living today is such that more and more families are forced to have both spouses working merely to make ends meet. In such circumstances the idea that the provider will be able to provide for two families, even if the other spouse helps out, defies all logic and common sense. As time goes on, I think the second family will be better provided for. It is not unnatural that the provider who is living with the second family will give more and more preference to the second family and that the first one will definitely be the loser as time goes on. That is not the legal approach but I think that is the logical approach. From the practical point of view there can be no doubt whatever that the first family will suffer as time goes on.

I am not suggesting that the present situation where people separate and set up second families is a satisfactory situation. I am not suggesting that the proposals in the Bill might not be, perhaps, better than what exists at the moment. Every effort will be made by courts to ensure that the first family is protected but from a practical point of view, no matter how hard the court tries, it just is not going to be possible.

I am somewhat depressed by the tendency which is inherent in the Bill and inherent in many other measures from time to time to suggest that in this case because marriages break down or fail, because we have more separations and new unions, we must necessarily accept and regularise this position no matter how regrettable or undesirable the suggested solution may be.

I wonder where we stop if we continue with this argument of having to face up, as it would be described, to these matters. There are all kinds of undesirable developments in this country. I do not want to pick any particular ones but if one takes something like drug pushing which is becoming more and more prevalent, will we be eventually told that we have to face up to this fact, that we have to learn to live with it and will be asked to legislate to accommodate ourselves to this in certain circumstances?

There used be a thing called leadership in this country. Political parties and other representative bodies, instead of accepting easy options and what seemed to be the conventional wisdom, gave leadership, however unpopular that was in the short term. Now the practice seems to be to find out what pressure groups want and, having found out, to follow them, to lead from behind. There is an element of that in this Bill which is unfortunate and if this kind of negation of leadership continues the future for the country is very bleak, indeed.

The Catholic Church has been criticised for expressing views in this matter. It would be amazing if they did not express their views in a matter which is regarded as of fundamental importance. All Churches are not only entitled but I would think obliged to speak on this matter and to offer moral guidance and advice to their members. They would be failing in their mission if they did not do so. On the other hand when members of the Hierarchy offer views to the general public on the effects of divorce, on the structure of society and sociological matters they are entitled to be listened to with respect. They may not have any more qualifications or expert knowledge in this area than politicians, sociologists, academics or the many other people who are contributing to this debate. A distinction must be made between what the Churches say to their own flock and the views they may offer in general on the sociological problems that may result from the proposed amendment.

We are dealing in this Bill with a constitutional amendment which makes it appropriate that we should look at the Article in question and the proposed amendment. Article 41.1.1º states that:

The State recognises the family as the natural, primary and fundamental unit group of society and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all positive law.

The first thing that strikes one is that it is a moral institution "antecedent and superior to all positive law" which suggests, certainly, that it cannot be undermined by any law. The second thing which strikes one is that the family has "inalienable and imprescriptible rights." I am not going to bring in a dictionary and tell the House what the dictionary says in regard to these words. I can assure the House that these expressions are probably the strongest words in the dictionary to emphasise the fact that these rights cannot be taken away.

Article 41.3.1º states:

The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

In previous discussions that took place from time to time in regard to divorce and in regard to the position of the Article in the Constitution dealing with divorce, it was suggested that all that was necessary was to remove the Article which says dissolution of marriage should not take place and, that subsequent to that, the Government of the day could pass any legislation they thought necessary to permit divorce. It was generally agreed by constitutional lawyers that this would not be enough, that merely to remove the prohibition on divorce would not be sufficient because the Article, the parts of the Article which I have quoted were so clearly inconsistent with divorce that subsequent legislation would be declared unconstitutional. Clearly, the position we would find ourselves in is that part of the Article would say that the family, by implication marriage, on which the family is founded, was "inalienable, imprescriptible," that it could not be interfered with and, secondly, that the State pledged itself to guard it with special care and to protect it against attack.

That Article also declares that in certain cases a court may grant a dissolution of marriage. What are the rights possessed by a spouse in this case? Marriage has been defined as the voluntary union for life, one man, one woman, to the exclusion of all others. If divorce is allowed, then, quite clearly, these rights have not been guarded with special care or protected against attack by the State. In fact, the State has taken them away. This is a situation in which one part of the Article is quite clearly inconsistent with the other.

This is a matter which cannot be solved in this House. It is not for this House to agonise over this legal conundrum but it certainly is a matter which will give a great deal of difficulty in the future and it will be the unenviable task of the Supreme Court to solve it and try to reconcile one part of the Article with the other. I am sure they will do their best but it is impossible to imagine what the eventual outcome will be. As I say, it is not for this House to try to solve it but the House should be aware of the fact that if the vote in the referendum is positive a very, very difficult legal problem is likely to arise.

I have very little further to say on this very complex problem. There is a widespread belief in this case as in many other cases that every problem has a solution. It is a belief, of course, which I think is erroneous. Many problems simply do not have solutions. This problem has been widely discussed, considered by the Joint Committee on Marital Breakdown and by many other groups and organisations for a long time and it is now to go to the people.

I said earlier that a minority consider that divorce is a civil right and the the majority must respect this claim. I also said that the consequences of giving that right will be very serious in many ways, that there will be a price to pay, how serious only time can tell. The people will make this momentous decision and, as one who believes in democracy and in the sound commonsense and political judgment of the Irish electorate, I am confident that they will make the right decision.

This morning Senator Dooge is in the United States where the American Geophysical Society are conferring an honour on him in recognition of his work for research and he cannot be with us. I am sure colleagues from all sides of the House will join with me in congratulating our colleague on his new distinction. He hopes to be back to participate in this debate later this evening.

At the outset, I should like to compliment the Minister of State on the very comprehensive and clear Second Stage speech she delivered to the House this morning. In a very comprehensive manner she outlined the Government's proposals and thoughts which will improve the situation for many people, including children who are caught up in the unfortunate situation of marriage breakdown or unhappy homes. Even though we have not had much social legislation over the years, such legislation always presents great difficulty. One can argue political points with great conviction but when it comes to sociological or moral issues, the problem is all the more difficult.

I certainly support this Bill which asks the House to put this important question of amending our Constitution to provide for divorce in limited and special circumstances to the electorate so that they can decide on 26 June or the end of June what the Government should do. It is important to remind the people that the Government are not proposing just to remove the constitutional ban on divorce as contained in Article 41 but to amend Article 41. The Bill before the House proposes that the Constitution should be amended by the deletion of section 3.2º of Article 41 which states that no law shall be enacted providing for the dissolution of marriage and its replacement by a new provision which is contained in Part II of the Schedule to the Bill from which I will quote subsection 2º:

Where, and only where, such court established under this Constitution as may be prescribed by law is satisfied that—

i. a marriage has failed,

ii. the failure has continued for a period of, or periods amounting to, at least five years,

iii. there is no reasonable possibility of reconciliation between the parties to the marriage, and

iv. any other condition prescribed by law has been complied with,

the court may in accordance with law grant a dissolution of the marriage provided that the court is satisfied that adequate and proper provision having regard to the circumstances will be made for any dependent spouse and for any child or any child who is dependent on either spouse.

This view was expressed by the Joint Oireachtas 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.

It is important to remember that the Tenth Amendment of the Constitution Bill makes provision for divorce where, and only where, there has been no marriage for at least five years and, of course, where the court is satisfied that adequate provision is made for all the dependants and all concerned.

This whole question is one that activates the minds of many people. In the course of the debate so far there has been a mass of statistics and figures presented in support of both sides of the case. It is unfortunate that comprehensive statistics are not available as to the real extent of marriage failure in this country. I want to compliment the Government on including a question to elicit this information in the latest census. There always have been unhappy marriages and houses where there was a silent alliance for very many years. The report of the Oireachtas Joint Committee on Marriage Breakdown found that marriage breakdown has increased significantly over the years and that the problem is a growing one.

Take the number of judicial separations, that is, divorcea mensa et thoro legal separations, Church annulments, State annulments, divorces in foreign countries, the level of applicants for deserted wife's allowances and deserted wife's benefits, which amounts to 9,400. We are told that from 1980 to 1985 15,000 barring orders were introduced. The latest statistics are from July 1984 to July 1985 in which period 3,269 barring orders were given by the court. Similarly, there were 1,974 applications for maintenance. There were 447 custody of children orders granted by the courts. All these unfortunate figures bear out the contention that the problem is a growing one and adversely affects a huge number of people.

If it is accepted that there are about 18,000 to 20,000 marriages in this country per year, and over 4,000 cases a year going before the courts, it would appear that statistically one marriage in every five is in difficulties. If half of those separations were to end in divorce, our country would already have a divorce rate similar to other EC countries, Greece, for example, Spain and Portugal where there is approximately one divorce for every ten marriages or, perhaps, Italy where we are told there is one divorce for every 20 marriages.

We also have the situation — and it is difficult to know what, if anything, can be done about it — in which a considerable number of couples are just living together without getting married, and bearing children. Even local authorities are allocating housing accommodation to such family units in our society. It certainly poses a question for them.

I was taken aback earlier this year when my own council, in allocating 12 houses in a town with a population of 1,200, received 21 applicants for the 12 houses. Nine of those applicants were single parents. All of them had more than one dependant. I just mention that to indicate the great change in our society over the last ten or 20 years.

One of the big problems with extramarital families is the illegitimate status of children. Such families have no protection in law, such as the Family Home Protection Act. We are told no automatic succession rights are enjoyed as by normal families. I welcome our Government's decision to hold a Referendum on the question of removing the constitutional ban on divorce. I compliment the Taoiseach and his Ministers on responding to the plight of thousands of people whose marriages have run into difficulties and failed irretrievably and who are at present forced to live in an unreal and unhealthy state, not to talk of a legal limbo. It is estimated that as many as 70,000 people are affected by this tragic state of affairs. Successive opinion polls have shown and, indeed, the most recent opinion poll has shown that 77 per cent of the people asked, favour divorce in certain circumstances. That represents three out of every four adults in the country. I readily admit that the number of persons polled are only a small sample from which the pollsters calculate the returns. The best of these polls and all polls can only give one an indication of trends or thoughts in different areas.

In the course of this debate elsewhere and on the Eighth Amendment of the Constitution Bill statistics were presented and included in the entire debate. Unfortunately, many of these statistics while they are genuinely given and, I suppose, factually correct, are sometimes quite irrelevant. I do not accept that quoting the American divorce rate or divorce rates from countries which have very little in common with ours is relevant. While it is regrettable that there should be such an incidence in this country of disharmony and unhappiness in homes, I think it must be accepted that nobody in this country gets married other than for love and with the hope and the belief that they are marrying for life. I would accept that many years ago, there were many matches or people forced to into marriage for various reasons. That day is gone. Most people enter the marriage state because they are deeply in love with their partners. I certainly believe that in this Republic of ours the Christian ethos and belief will continue to guide and give comfort to the vast majority of the citizens.

We are told that divorce is a great hardship on wives and children. Yet, in the figures I have looked at in preparing for this debate, it would appear that almost 70 per cent of those people who file for divorce, whether it is in the UK, European countries or in Northern Ireland, are wives. It is appropriate that, if we are to look at the figures anywhere we should look at the figures in the predominantly Catholic countries such as Italy — which has only introduced divorce in recent times — Spain and Portugal. One sees, for example, in Italy that the situation has eased off quite significantly in the past five or six years. If we want to look at the question, the more relevant jurisdiction would be the North of Ireland. From the statistics there one finds that, and 1984 is the last year for which I have statistics, there were 579 petitions for divorce lodged by husbands; 1,197 petitions lodged by wives, that is a total of 1,776. It means that 67 per cent of those petitions were filed by wives. Of the cases set down in the judges' list in 1984, 22 cases were defended; 1,271 cases were undefended, which means 85 per cent were undefended. Thedecrees nisi granted numbered 1,313. I think that the percentages in this country could hardly be as high as that, even though there is no reason I should speculate on that figure. The quality of life, the peace and the solitude, I would imagine, contribute to a gentler pace here than in areas which hit the headlines so very often.

Within the figures and statistics in this debate — I accept that everyone who quotes figures is correct — it is difficult to find a country exactly like ours. It is irrelevant to compare our country with the US, where we are told there is a very high divorce rate, or with the UK. Rather, we should look at the figures in the predominantly Catholic countries. In Portugal, for instance, in 1960 four out of every 1,000 marriages ended in divorce; in 1983 that figure had increased to eight divorces for every 1,000 marriages. In Greece, the figure, we are told, is one divorce in every 12 marriages; in Italy it is one in 20.

The evolution of our society and the growth of the welfare state has changed the role of women which means less economic inter-dependence between the wife and the husband. Marriages are now more reliant on mutual affection and respect. If these are not present in a home then the home very quickly becomes a house or a place where people just live. The problem of disharmony in the home is one which I think our Government are correct in addressing. In the district court for the year ending July, 1985, 1974 applications were made for maintenance orders; 3,269 applications were made for barring orders, with 447 applications for the custody of children. That in itself underlines the extent to which problems arise in this country. There are people who say we should ignore them and perhaps they will go away but I found it very sad to read recently of a murder trial in this city, involving a bride of only a number of months.

We must accept that some marriages just do not work, for whatever reason. The people going to the polls should approach this whole question with humanity and with compassion and with an abundance of Christian charity. I do not believe, for a moment, that it is possible to legislate for morality or that the Catholic church in this country needs the force of civil law to keep those of us in the church on the "straight and narrow". On the road through life, we should all do our best to keep on the "straight and narrow" and to live one day at a time.

I am happy that our Government are putting this question to the people for their decision. I agree with the Catholic bishops when they say one cannot impose virtue by law. I trust and pray that people will not adopt the attitude, "I am all right, Jack" but that the electorate will approach this question with sympathy and understanding for husbands and wives whose marriages have run into difficulties. I hope the people of this country will have an abundance of understanding for the families of couples experiencing difficulties. I feel quite sad, as a person who receives much comfort from my religion, when I hear people, both religious and lay, speak on this issue in trenchant terms on behalf of God but without any regard to the charity of Christ, which is the greatest virtue. Saint Paul said "If I distribute all my goods to feed the poor and offer my body to be burned and have not charity, it profiteth me nothing". I would not like to set myself up as a judge of any of my neighbours or the public in general. I hope that the debate in this House will set the tone and will encourage people to think deeply before they go to the polls.

During the referendum on the Eighth Amendment to the Constitution the polling booths in many areas adopted quite a different stance from the normal situation at elections when the operation is run by activists of the political parties. I would hope that we would not have a repetition of that, where well intentioned people just moved in and had scant regard for the normalities of a healthy democracy. I hope that the returning officers on this occasion will ensure that the highest standards of democracy will prevail and ensure that the referendum will be carried out impartially and without hindrance or intimidation.

In conclusion, I want, to congratulate the Government on their caring policies. Colleagues on both sides of the House will readily agree that there are no votes to be had for any party by introducing social legislation, a fact which explains the lack of such legislation and the scarcity of it in the past 50 years. Indeed the present Government, and the previous inter-party administration between them have endeavoured to improve the quality of life, awaken our slumbering social conscience and force us to live up to the precepts of Christian charity, which traditionally gets an abundance of lip service and little else.

I wish the Bill a speedy passage through this House and I hope the House will encourage the electors themselves to think deeply and charitably on this important issue.

I should like to welcome this Bill, not with a totally, full-blooded 100 per cent welcome, but because some of us have been looking for a Bill of this sort for many years, a Bill which introduces some sort of divorce. It is a welcome start from the Government. When I say it is long overdue, let me say also, it has been easier for those of us who are independent in this House and without the responsibility of Government to advocate this sort of thing. It is a great privilege to be able to say that we need divorce in this country when one has not got the same responsibility and accountability to the electorate as the Government have had for the past few years. I am aware of the political risks the Government are taking in making this step. In some ways it is a courageous decision. There are political dangers for the Government in it. I welcome the fact that finally, in albeit a limited way, they have decided to grasp this nettle. Having done this they themselves, must pursue with great vigor, the passage of this referendum. The reason this referendum was not held in the past, apparently, was because of the great danger of its being defeated and how that would set back reform of this nature in this country. Having taken this step and having put it to the Dáil and Seanad — and undoubtedly it will be passed in this House — I hope that the Government will now pursue the passage of this referendum with the vigour it deserves.

The great importance of this referendum to the outside world and to ourselves is that it is a milestone, a watershed in ourselves saying what sort of a country we think we ought to live in. It is a milestone in our own declaration of whether we have our laws dictated to us by someone else or whether we are a compassionate society that worries and cares about the problems of God knows how many. Statistics in this debate are pretty bogus and very difficult to come by. What we do know is that a large number of people are affected by this problem. I do not intend to use statistics at all because they are juxtaposed in this debate and have been for years, for the benefit of one side or the other and they are very difficult to get hold of, let alone to prove.

What I feel is that this change in our Constitution will tell us a fair amount about what sort of a Constitution we want to have, because the Constitution certainly reflects the ethos in which we live, the culture, the standards and the basic code under which we live.

While welcoming the tenth amendment to the Constitution, I believe it is only a small and very inadequate advance on a road that we have to take. In a minor way it merely changes the balance on the scales. The problem we face in the Seanad today is not just the total prohibition of divorce in Article 41, but the Constitution itself. In 1937 the Constitution was in general an appropriate one for the day. Despite defects it was suited to its time. It is no longer an appropriate Constitution for 1986, 49 years later. The Constitution is a rigid straitjacket, an obstacle to reform demanding a national referendum to change even the timest detail.

This amendment merely tinkers with our very basic problem in our Constitution. In some ways it even aggravates our problem by inserting a compulsory five-year period of failure of marriage into the Constitution itself, a matter of detail which should be left to the legislature. Do we want a referendum in the future just to change the term for which marriage is broken down? This is a burden we are imposing on ourselves. If we decide in the future that this five-year term is too long or if we decide it ought to be longer, if we decide several times that this five year term should be changed are we going to have a national referendum to make it four years or three years or two years or seven years or whatever it is? It is an awful burden we are imposing on ourselves by putting this clause into the Constitution.

It is time we looked at whether we need a Constitution at all. There are several countries who work and operate perfectly easily and far more flexibly without a Constitution. Secondly, the 1937 Constitution is, I believe, now obsolete. Even were Article 41.3.2º, which is the Article prohibiting divorce, to be deleted completely — which is unfortunately not proposed for reasons which the Minister of State gave us — our Constitution will stand as still a denominational document imposing the doctrine of the Roman Catholic Church as we saw so tragically in the disastrous retreat into the past made by the Eight Amendment to the Constitution on abortion less than three years ago.

In addition, I do not know how we can offer this present Constitution, this outdated denominational document as a blueprint to the people of the North, while still purporting to pursue the unification of Ireland. Articles 2 and 3 should also be deleted as a recognition of the realities, as Article 41.3.2º should be deleted as a recognition of the realities, not as a concession or a carrot to be dangled at a mythical negotiating table.

A new 20th century Constitution facing the modern realities of 1986 should be substituted at least before we reach the 21st century. Do we really want or need a plebiscite, a divisive debate every time we wish to alter a single word in this clumsy instrument? That is unfortunately what we are doing today. The 1937 Constitution has served its purpose. It is unfortunate that we have to debate this today at such length. I think it is unfortunate that the Legislature cannot make a decision of this sort. Maybe the people do not trust the Legislature; perhaps the Legislature does not trust itself or maybe the particular legislation, which is what it is, going into the Constitution is a convenient means of getting it passed.

To come back to the Northern Ireland situation, to come back to the Constitution and a document which we can offer to the people of the North, I would say this: as Senator Robb said before on the Eighth Amendment, the people of the North are watching very closely our debate on divorce. They may not be watching it for all the right reasons. We should not be putting this forward as a concession to them or to woo the Unionists or to try to prove to them in some way that we are a more liberal society than we are. What we may do, and what many are hoping for, is, if we defeat this Bill on divorce we will confirm all the prejudices which they maintain about the Republic, about its being a Roman Catholic dominated State, about us being a denominational State — that is the danger. They will look at the South and say "They cannot, even as a people, introduce a pluralist, liberal measure of that sort." They will be right. It is not very popular in here to say the Northern Ireland Unionists are right but, if we do not pass the Bill, their case will rest. They will say: "We do not belong in such a denominational State". They will be right to say that. I do not think we should be introducing this under any pressure from them or under any wish to woo them or bring them into a united Ireland: we should be introducing it because we believe it is right. Their case will rest assured and right if we are not prepared to take a measure of this sort. There are many people on the right wing of the Unionist party who are hoping that this Bill will be defeated. There are many who are anticipating that the referendum will be defeated. Because then they can point their finger and can say: "We told you so". That is worth thinking about.

A great deal has been and will be said in this debate, no doubt, about the role of the Roman Catholic Church. I see no problem about the Roman Catholic Church expressing its view on an issue of this sort. Indeed, as I am sure Senator Hanafin will tell the House and will agree with me, the Roman Catholic Church has a duty to speak out on issues of this sort. It has a moral duty to guide its flock on issues of conscience. What it does not have is a right to put pressure on legislators. I see the referendum as being about who actually controls this country; who has more power, the Church or the State. That is why it is so significant. It is quite patently clear that the Church is even now flexing its muscles for a fight because if the Church loses this fight the decision will have been made by the people that at last we are a mature nation where legislators can make decisions — not without fear of the Church; because there is fear of the Church in this debate — but can actually beat the Church. I do not like to hear stories of the Church whipping up a campaign on this. It has every right to make its views clear. The Church is printing one million documents against divorce; saying that a campaign is being waged and directives are going forward; that the pulpit must be used for the sanctity of marriage while the Church is still maintaining it cannot direct people in which way to vote.

Undoubtedly, the Church has a grip, and undoubtedly the Church is reluctant to lose its grip. What will happen if this is carried? Will it be that Ireland has grown up into the twentieth century and the Roman Catholic Church has lost its grip over the minds of people? I hope that politicians who are frightened of the power of the Roman Catholic Church and who are reluctant to campaign because of that power and because the Church means votes will stand up in this campaign and finally overthrow the shadow which hangs over them. On this issue the Church shows too much emphasis on Roman Catholicism and not enough on Christianity; too much self-interest for its own power and not enough sympathy for the plight of people — most of the people being of its own flock — who are in misery as a result of marital breakdown.

While I welcome the principle of the Bill as a major move forward from the Government and a move which quite honestly six months ago I did not expect it to take — indeed, the Government said a few months ago that it was not the right time — I believe that the wording, the detail and the principle involved in some of the introductions in the Bill are a retrograde step.

It would have been far simpler, despite what the Minister of State and Senator Ryan said, simply to delete Article 41.3.2 of the Constitution. It would have been far cleaner and far simpler just to say on the issue of divorce that the Government itself can introduce legislation on divorce. This would have been done by deleting Article 41.3.2. The Minister of State and Senator Ryan said that there might be problems about doing this in that it would conflict with other Articles in the Constitution. I am not a lawyer but I do not see any great problems there in the inalienable rights of the family. If there is a problem on one, there is a problem on this. If there is a problem on allowing divorce in the Legislature there is a problem on introducing divorce in the Constitution. If we have got problems with the Constitution in that way, all it does is support the view which I have been expressing that a totally new look at the Constitution, updating it in all aspects, is necessary. To attack it piecemeal in this way will create more problems for ourselves in the future. There are several other clauses, pages and Articles of the Constitution which need to be changed and updated. This is only one. We will create more problems for ourselves if we attack it piecemeal as has been pointed out by the Minister of State today. We may have constitutional problems on this one also which support the argument for updating other Articles.

What I find difficult about the Bill is the writing of what appears to me as legislation into the Constitution. Once again I would have left this completely to the Legislature. We are writing detail into the Constitution, detail on five years. It is a bad principle and a bad precedent to be doing this. It will create problems for us in the future. I do not know where the five year period came from. I do not know why it was not three or four or six years. I do not believe there is any necessity for a time limit of this sort to be written into the Constitution or indeed into subsequent legislation. I would have thought it was far more sensible and puts far more trust in our Judiciary to say that a divorce can be allowed where marriage has broken down irretrievably. To put five years on it just creates complications and in many cases will condemn people to another five years of misery which they have been suffering for God knows how many years already.

I suppose there is an element of expediency in this in that the Government presumably believe that by announcing that these restrictive clauses will be put into legislation they have a better chance of the Bill getting through. I sympathise with that point of view but I do not believe it is right. I believe we are creating problems for ourselves in years to come.

One attitude on divorce that has puzzled me more than any other has been the Fianna Fáil attitude to this Bill. I do not believe that the Fianna Fáil stance on divorce is the dignified neutrality they would be like us to believe. They have voted consistently in this House against divorce when it was brought up, but at that stage it was not a reality in the form of a Bill. Now when it hits them straight in the face and becomes a live reality, they have decided to cop-out of this problem and adopt a policy of total abandonment of their responsibilities as an Opposition party.

What is the Fianna Fáil position on marital breakdown? What happened to the Fianna Fáil single party committee which it set up as a foil to the all-party committee many years ago on marital breakdown? We have heard very little about that. I presume that the committee broke down or disappeared or has not sat. What do this party plan to do for those afflicted by unbearably unhappy marriages living in misery or in limbo? We have heard some criticisms of the Bill, some reservations, many hysterical attacks on divorce but we have heard no constructive proposals from Fianna Fáil because they have decide that the political fall-out from taking either side in this debate is too dangerous to risk. The order has gone out from the higher echelons of Fianna Fáil that as a party they must duck the issue. They can then, of course, very conveniently and very high mindedly accept the result, whatever it is, as the people's will afterwards. They are covered but they have no courage. These are the people who pose as the next Government and leaders of opinion in Ireland. They are the people who can give no lead on such a vital, constitutional and human issue. The mind boggles to think of giving government to a party who stand back from something as important as this.

Do Fianna Fáil not recognise the reality of second unions after irretrievable breakdown of the first marriage? Have Fianna Fáil nothing to offer on marital breakdown? If the party do not wish to introduce divorce but at the same time do not wish to obstruct a second marriage — which is their present absurd and ridiculous position — is the logical conclusion of their so-called "neutral stance" that we shall see them introducing legislation to allow bigamous and even polygamous relationships if they return to Government? Legalisation of polygamy would be as original and constructive an idea as Fianna Fáil have come up with in this whole debate on divorce since it has been raised it the Seanad.

We have not spoken yet.

I am very glad that Senator Honan is here to listen to me. I can think of nobody more appropriate.

It is only by accident.

The Front Bench is empty.

The debate is only — and I wish to repeat this — about the right to remarry. Divorce is only about the right to remarry. I do not think that the scaremongering tactics being run by some of the anti-divorce side are justified or fair in any way. The threat of the floodgates opening, the threat of California and Britain in some ways is not realistic in Ireland at present and is not backed up by the introduction of divorce in other countries with a Catholic ethos.

In many cases I respect the position of the Opposition. There are sincerely held views on the other side. What we must recognise on this side, as a concession to them, is that divorce will not solve the problem of marriage breakdown because the problem of marriage breakdown is insoluble. It will create more problems as well. Let us concede that. But it will in many cases relieve human misery where it has been inflicted for many years. What we will be doing by introducing it is recognising this problem where we have stuck our heads in the sand for so many years.

I would like to begin by relating to the debate as it has been introduced and developed so far and to take up immediately one of the points made in a thoughtful speech by Senator Eoin Ryan. The Senator made a number of very valuable points but he made one or two that are simply unsustainable by fact. One of these was the suggestion that those who are responding by suggesting a constitutional amendment to remove the existing prohibition on divorce are moved by whim and fancy, by poll-takers and opinions expressed in polls. I should like to remind Senator Ryan that before the restrictions of the 1937 Constitution and long before pollsters began, Senator W.B. Yeats spoke about the disabilities that would face the minority to which he belonged if there was a prohibition on divorce. Of all people in the history of this country he was moved sometimes, by the whims and fancies of literary possibility but hardly by social attitudes. The attitude of the Labour Party down through the years is one that is not moved by currently expressed opinion, by whim or by fancy.

In 1925 there was a private Bill on divorce and since 1967 we have had a number of attempts to change the law in relation to divorce. In 1967 it appeared that the Fianna Fáil inter-party committee on the Constitution represented by Deputy Molloy, the late Deputy Colley and others — and I think Deputy Lynch was the chairperson of the committee — felt that the prohibition on divorce in the Constitution was unhelpful if we looked forward to developing new relationships on this island.

Dr. Noel Browne who was both a Senator and a Deputy at different times made several attempts down through the years to introduce reforming legislation. In his Bill, the Eighth Amendment of the Constitution Bill, 1980, introduced in the Dáil in Private Members' time on 3 June 1980 he sought permission to amend the Constitution to remove the constitutional prohibition. He had less than ten Deputies in support of his position and the Bill was dropped instantly. I find it hollow to hear Senator Eoin Ryan on the one hand asking us to give leadership and at the same time suggesting that political parties should not declare their position or that individual politicians should not indicate their position. We are elected to the Dáil and to the Seanad not to represent a constituency of confusion and fear or to sow confusion and fear but to legislate, a point which I will develop. It is our duty to look at the state of the law — in this case family law — the social circumstances to which that family law is addressed in terms of it being adequate or inadequate and to take such steps as will enable us to have a law that will be respected.

This debate is very simply about whether the Legislature shall be allowed to confer the right to remarry on couples affected by marriages which have irretrievably broken down. On 29 October 1980 Deputy Eileen Desmond proposed an amendment to Article 41. On that occasion the motion fell. The Fianna Fáil Party voted against the amendment and the Fine Gael Party abstained. On 6 July 1983 the Minister of State moved a motion to set up the report of the Joint Committee on Marriage Breakdown and on a number of occasions permission was sought in the other House to extend the sitting time of the committee because the work was not completed. Deputy Michael O'Leary on 30 October, 1985 introduced the Marriage Bill, 1985. The Bill was opposed and went into Private Members' Time. On 5 November, 1985 the Tenth Amendment of the Constitution Bill, 1985, was introduced and Deputy O'Leary secured less than ten Deputies in support of his Bill. Therefore it could not go on to Second Stage. On 30 October, 1985 the Marriage Bill, 1985, was introduced by Deputy O'Leary and, again, did not go on to Second Stage. On 18 February, 1986 the Labour Party introduced the Tenth Amendment of the Constitution (No. 2) Bill 1985; moved by Deputy Taylor. Deputy Cluskey spoke in support of it and the debate continued with a number of speeches. The Bill was defeated on 26 February 1986. On 14 May, 1986 the Government Bill was introduced. I cannot believe that anyone can suggest, after such a long process of attempting to remove the constitutional prohibition which exists in Article 41.3.2º of Bunreacht na hÉireann that this can be regarded as something that is either sudden, a simple reaction, the basis of a whim or somebody reacting to bring in some fashionable legislative measure.

The proposed amendment is one that is quite restrictive. I take the criticism that has been made already. The electorate are to be asked at the end of June to allow the right to remarry. If they do so, it will allow the Dáil and Seanad to legislate to enable couples to remarry, a power which the Legislature does not now have. The Government have announced the terms on which they propose to exercise that new right. If they receive a "Yes" vote from the people the detail of the Government's intention is clearly set out in the statement of intent which accompanies the wording of the proposed amendment. These terms are quite restrictive, more restrictive than I would have wished. In the attempt to seek a balance between different sections of Irish opinion the Government made the amendment restrictive.

I share the view of those who suggest that the moving of decision making processes from the Legislature to the Constitution is something that normally would not be welcome. In the theoretical literature on constitutions as in political science one finds that there are two basic categories into which constitutions fall. They confer rights which are basic, and these are usually expressed in the basic document, and they sometimes contain aspirations across which there is a wide variation. Political scientists who have examined the subject feel that in conditions of change one is best served by a minimalist constitution which clearly asserts basic rights but allows the elected assembly to pass such laws as are appropriate to the changing circumstances of the day. In this context I express some of my reservations in relation to the moving of powers of legislating into the constitutional framework.

I agree with those who have appealed for a moderate, reasoned debate in the coming weeks. I support that appeal. Those of us who are in favour of securing a "Yes" vote in the referendum will not be greatly upset by those who have described us as infidels and heretics and who have prayed for the grace of their God. Their relationship to their God is something that they can explain to the public, which is their business. They are exceptional and they should not be regarded as being the main thrust of the case against this amendment.

The amendment has to be judged against the background of the social conditions that prevail in Ireland today. Let us not argue as to whether 70,000 people is an accurate figure. There is no dispute about the fact that tens of thousands of couples whose first relationship has failed and who have formed second unions, who may have children, or who hope to remarry are denied that right at present. The amendment deals with those who are suffering from such a prohibition at this moment. If the Constitution is not amended those who will suffer will not be confined to those who are involved immediately but to those who are potentially denied such a right by an unreformed Constitution. The failure to remove the prohibition offends those not only affected or those potentially affected but all of us who want to see in the Constitution the power of the Legislature to legislate in an open way that will build a consensus towards eventually a pluralistic unification of this island.

Something which struck me in listening to the case against the proposed change in the Constitution in the other House was the curious silence on the incredible contradictions affecting children and spouses under the existing Family Law. I want to make a suggestion in this regard. One has to decide: is the existing Family Law adequate to deal with the existing conditions of marriage breakdown? You can conclude that it is adequate or you can conclude that it is not adequate. If you conclude that it is not adequate there are two roads that you might take: one, that you will bring in a series of Family Law reforms which are compatiable with the Constitution but which will exclude the possibility of legal remarriage, or, you can take a second road, which the Government have taken, and that is, you can reform the Family Law with a package of Family Law reform legislation which includes an amendment to the Constitution that will allow the possibility of legal remarriage. If you do not take that second road and perhaps you want the existing legal situation to continue you must examine the adequacy of what are supposed to be alternatives, for instance, the adequacy of nullity.

What does nullity do to the children of a marriage that has been annulled? What is their status in the social and in the legal system? What is the protection of those children under Acts that are available to protect children and Acts that have been justified in exercise of the Constitution. If you take nullity, separation, legal separation and all the alternative strategies that have surfaced so far, you are left with a series of unprotected children, with diminished rights and diminished protection. One then looks to all the second unions. I am amazed that people begin their speeches like this: "Let us be compassionate, but let us not—". One bishop spoke about loosening the brake on the juggernaut which is going to come dashing down the hill and asked, "Do you want for the sake of allowing these people to remarry to endanger every marriage in the country?" Another one is, "Do you want people to have a little fire to warm themselves and live with the consequences of a forest fire?" It goes on to suggest that compassion allows such people to say that their marriage never existed, having offered certain grounds which they are able to sustain, in either a civil fashion through civil annulment or through a Church annulment process. What of the children of such unions? They are illegitimate with all the implications that follow from that. Then there is the question of legal separation and the consequences of that. A person can fictionalise an earlier relationship and retrospectively discover defects and separate if one wishes but one cannot legally remarry.

The Joint Committee on Marriage Breakdown realised the social conditions we live in and concluded correctly that in such circumstances where there is a prohibition on divorce where will be many thousands of people who will form second unions outside legal marriage. I invite the people who have been opposing this amendment to address themselves to this fact. What is to happen to spouses within such marriages or such unions? Are they happy that they are not protected against the violence of the spouse? Are they happy that the children of such unions are removed from benefit under many of the laws within the ambit of family law? Are they happy that, in relation to property — I am reluctant to mention that — they are deprived of all the rights which it is suggested this amendment will wipe out for a great number of people?

We have to realise that we are living in a real world. I reject that this is a case of some kind of modern, immoral people arguing one side of the case and traditional loyal orthodox people arguing the other side of it. It is not an argument about tradition versus modernity. Tradition can be used to abuse or disabuse in the present time. Tradition can consist of the ransacking of history to produce every backward and uncaring element possible or it can be defined in terms of looking back at the heroic struggle of people who are compassionate, open and ahead of their time. Equally, in relation to the modern world, to take the view that this is a simple piece of modernism, a simple copying of something that exists elsewhere, is to suggest that we are as citizens amenable to legislative change or, in a manner, akin to the Asian flu, and that we sit as passive victims condemned to live in the modern world on an island continually influenced by other countries and other jurisdictions. It is a pathetic invitation to citizenship and it is, of course, built on the principle of fear. The alternative is to suggest that we are conscious human beings dealing with problems that arise, with possibilities, hopes and aspirations that we can achieve in our lifetime against many obstacles and difficulties. That is an invitation to responsibility. To take refuge in fear and in comparisons based on fear is a simple copping out of the responsibility of living in a modern world. It is a thoroughly irresponsible position and furthermore it is an immoral position.

If we pass this amendment to the Constitution we are not suddenly going to become Californian and the lifestyles of people will not suddenly change. The lifestyles of people in Galway or Cork will not change to that of the lifestyle of people living in Los Angeles. It is about something more modest. It is about the reforming of the inadequate family law which exists at present in a manner that takes account of the social stresses already present in our society.

The argument that the introduction of the legal possibility of divorce causes marital breakdown is a most spurious one. Where is the evidence for this argument? I challenge those who say that there is such evidence. What examples can these people give that a change in the law in any other jurisdiction was associated with change in the divorce rate? When the law was changed in other jurisdictions it had no bearing on fluctuations in the divorce rate. Fluctuations in the divorce rate are associated far more with urbanisation, migration, participation in the workforce, unemployment, poverty and a whole series of social factors. The suggestion that a change in the law, having removed a constitutional impediment, would increase the rate of divorce is rather like saying, that the existence of umbrellas causes rain.

The passing of the amendment should not be seen in isolation. It should be taken in the context of a total package of family law reform. Some of the matters are dealt with in the Statement of Intent but it is important to bear in mind that there is at present, before the Dáil, a law relating to the issue of domicile. The Tánaiste, in a speech to the other House, made the point that work is at hand on the drafting of a new Bill extending the right of women to protection against discrimination. That is also an important Bill. We have already passed legislation providing for more rational family planning facilities and services. Let us be clear about this. Does any legislator in the Dáil or the Seanad seriously suggest that we are passing this legislation so as to force women or men to use family planning devices or to create a new need. In a modern democracy acting responsibly, creating and respecting social values, responding to people who are disadvantaged, there has to be an openness in the legislative process and that is what the family law reform package is all about. The constitutional amendment is not occurring in isolation, it is occurring in the context of a series of wide-ranging family law reforms.

Let us suppose that the referendum is defeated and that the arguments against it prevailed, what will be put in its place? Is nullity the same as divorce? What does nullity do? What would become of the children of an annulled marriage? Are they happy with separation agreements or with legal separations? What would become of the children and spouses in such arrangements? What about the interesting consequences of a case which was decided quite recently in which a wife had got a maintenance order against her husband. They both had lived previously in England and subsequently came back to Cork, he having a permanent and pensionable job. He got a divorce in England which was recognised by a Supreme Court judgment in 1985. The maintenance order which the wife got in the Irish courts is in fact weakened by her husband's English divorce. That is the present state of the law as it affects families, an English divorce recognised here — is that a happy situation? One cannot argue for the rights of such people to change the general good but the majority need the protection of something that is higher than the legislature. This is fallacious and almost strikes at the very core of democracy itself.

I want to say another word about what Senator Ryan has said — because this has been suggested also in a fine speech in the other House by Deputy David Andrews — in regard to the duty of legislators. Is it the duty of legislators to offer silence on this debate or should legislators have a view? We are elected to both of the Houses to legislate. We are not elected, as was said by a speaker in the other House, to seek to have the willingness to wound but to lack the commitment to strike. We are faced with a corpus of legislation which is either adequate or inadequate. The people who vote for us are entitled to know where we stand in that regard. The idea I find strangely contradictory in a society which has regular elections, is that you would retire during a referendum and you would say in their hearts this is what the people are thinking. Do Senators know who this suits? It suits those who have already sowed fear, apprehension and doubt in the minds of the electorate. You stress all the possible fears and doubts that people may have. You then suggest that there should be practically no campaign and, above all else, you sanctimoniously announce that you expect the verdict of the people.

What hypocrisy. It is little less than an evasion of responsibility. I challenge those people who are elected to either of these Houses to speak out or else go silent on other issues. Perhaps it is that they have developed the culture of silence from their silence on other issues, their long silence on family law reform over the years and indeed on the rights of children over the years, an accusation which cannot be directed against most of those in this House and the other House who have spoken in favour of amending the Constitution. The public are entitled to know from those to whom they gave a mandate where they stand in relation to this issue. Of course, we have in some cases the cowardice of many of those who will not state where they stand, which has been encouraged over the years by the extraneous possibility of reforms that might come from the Supreme Court. There has grown up in both of the Houses an assumption that maybe somebody would bring a case, that the case would be held and then we would say in the same way that elected representatives are forced by the county manager to house itinerants, that the legislature can be forced to actually say, "well we have to do it because the court has taken a decision." It is discrediting democracy. It is demeaning both of these Houses if we are sheltering behind the potential reforms of the Supreme Court.

The amendment addresses the inadequacy of family law. The other issues that have arisen in this debate so far are issues that should be taken carefully. They are issues such as why we should have family courts and why we have marital breakdown. I have disposed I hope of a bogus argument that marriages will break down with greater frequency because we have changed the law in these Houses. I would like to hear the logic upon which such suggestion can be justified. I repeat that the changes in the rate of divorce in every country I have looked at have been based more on urbanisation, factors such as participation in the workforce, factors such as employment, unemployment, poverty and so forth. Marital breakdown is also related in our case to alcohol abuse and violence. This has put pressure on relationships today in a way that is increasingly harder to bear.

There are strains within marriages that are mediated through factors of a psychological kind, that simply do not heal. When people in such unions are carrying this great burden, they are entitled to hope for more than the possibility of separation and all of the legal and social consequences that follow from that inadequate type of separation and that they be entiled to remarry. A major reform that is long overdue is suggested in the total package, that is in the concept of the family courts. If the couple must separate they should be able to separate in a way that does not leave them as devoured, emotional corpses. I trust that the structure of the family courts will be such as to enable them to draw on expertise that is not strictly legal and also on a range of other advisory services from the broad social and psychological sciences, from medical sciences and from others. That will be important.

The reforming legislation, the statement of intent, will widen the grounds for judicial separation. Can anybody be happy with the existing grounds for judicial separation on the three existing narrow grounds? These include the concept of unnatural practices and so forth. They are markedly inadequate. The widening of these grounds is important. In so far as orders of separation will be part of the total process, it is an important part of the total reform that these changes take place.

I will be deliberately brief on another issue because there are other Senators in a better position to contribute. This is the question as to the kind of reform being suggested. The proposed amendment is to subsection 3.2º of Article 41 as the Minister has stated. The grounds mentioned are adultery, cruelty and unnatural practices, one that is seldom used. There are many people who want to speak. I simply confine myself to saying that the existing panoply of measures in family law are a mixture of inadequacy, evasion and downright hypocrisy on many occasions. I wish that the constitutional prohibitions that prevented us from having adequate reform in family law never existed, that we had gone on to legislate responsibly for the society in which we find ourselves.

There seems to me to be thread running through the contributions in both Houses of those who oppose the amendment in relation to Articles 41 and 42. They have suggested that really the protection that exists in Articles 41 and 42 for dependent spouses and children of first unions is fundamentally gone after the passing of this amendment. Nothing is further from the truth. They are relying on one of the cases decided by Mr. Justice Walsh in 1966,Nicola v. An Bord Uchtála. In that case Mr. Justice Walsh concluded that the family constituted the legally married partners and their issue.

They are not telling these Houses that in a subsequent decision, 14 years later, Mr. Justice Walsh, in the case ofG v. An Bord Uchtála, a case where both parents had been killed and the children were left as orphans, found that the children were part of a family, even though the partners who had been married were dead. Indeed, what is at stake here is that the family is constitued by the relationships which ensue from a marriage and not from the marriage of the two partners themselves. To suggest that a changed relationship between the two partners automatically abolishes the concept of the family is a gross distortion of not only decided law but the intention of the the Government in relation to amending the Constitution.

I would make the further point that in the future, should the amendment be passed, the Judiciary will be asked to decide on the totality of the amended Article, not in relation to a previous case before the Article was amended. It is this totality of the Article, as amended, to which reference will be made. I will make it all much simpler. The family, as understood in the Constitution, with all the contradictions Senator Eoin Ryan mentioned, is very much more than just a contract between two people. It consists of the relationships that constitute a family. What is going to happen, in exactly the same way as where one partner dies and the other person marries again and there is a second family and so on, is that all of the children will continue to enjoy the protection of the Constitution. Indeed, after the passing of the other amending legislation in family law in relation to the status of children, all children, whether born within the legal marriage union or not, will enjoy enhanced protection. So, to say that the intention of the Government is anti family or that it mitigates or reduces in any way the protection afforded to children is an absolute mischievous nonsense. I hope it will be seen as such.

Equally, if you agree that the family consists essentially of a set of relationships, which either work or sometimes do not succeed, if you want to use language like morality, immorality and so forth, you must ask yourselves the question, how moral is it — I would put this to those who oppose the amendment — to regard the children of extra legal second unions as illegitimate? Is it a high moral position to say that if one becomes involved in a second union and has children or if, for example, one gets a Church annulment which the State does not recognise, and lives bigamously and has children that those children should be regarded as illegitimate, that the spouse is not protected from violence in the home, that the children have no rights in relation to succession, that they have limited rights all over the place? This is supposed to be the high moral ground. It is if you believe that morality can be built on a castle of hypocrisy.

On the other hand, I believe it is a profoundly moral position to recognise the fact that second unions exist, that the children exist, that parents have obligations to their children and that there is a responsibility on the Legislature to provide an adequate code of family law. It is, to my mind, a curious inversion of the abuse that is coming from the opponents very often that it is a far more moral and responsible position for legislators to take.

It has been argued that another basis for the high ground morality of the bigamous marriages and the illegitimate children of second unions is that it is closer to the teaching of the Roman Catholic Church. Within the Roman Catholic Church there are many theologians debating what is conscience and how it is exercised. I would merely make this point about the debate on conscience. It is assumed in its classical form, in a very old tradition going back to Don Scotus, that an individual who believed that he or she was acting correctly had to be respected even though other people felt that the person was acting in a way that was not acceptable. It was not a definition of licence but a definition of conscience.

Then there crept in the view of an adequately informed conscience. An adequately informed conscience is when you appear to do and act for yourself in a way that is being dictated for you, by decisions in which you perhaps have not participated at all. It is a serious mitigation within theology of the concept of conscience and is rejected by most modern theologians. That having been said, I respect the usefulness of people declaring their position. If I say that legislators should speak out and say where they stand, am I not but to welcome bishops when they speak? I have read Bishop Cassidy's two articles on this subject and also some other statements that have been made. They are very interesting but they move from a tradition within theology to conclusions that are neither theological nor based on sound sociological fact, for example, the assertion that if this amendment is carried it will lead to a divorce rate in Ireland that will be, very quickly, of the same proportions as the divorce rate in the neighbouring island of Great Britain.

Where is the source of this insight? I presume there are sources of knowledge which are nonstatistical, that they may be based on insight. I respect the complicated theological arguments of some of the people who have contributed by way of bishops' articles and so on, but when they move into the realm of social fact, to suggest that they have an insight as to what may happen in the future is interesting, perhaps even valuable, but it must be put alongside every other individual insight. It does not have an authority which exceeds an individual complicated opinion.

We are asked, as legislators, to move beyond this. We have to remember that we are elected to these Houses to legislate for all of the people who comprise the electorate of Ireland, and accept the consequences of our actions and of our legislative decisions beyond the period of even our own term here. We have to continually bear in mind that we are not legislating for what suits 1986 but for what will suit a period which goes quite beyond that. We must affirm again that legislators are asked to legislate beyond the favoured opinions of a particular strain within a single denomination.

I think it is unhelpful if people do not state that that is their position, that they want Roman Catholic laws for Roman Catholic people; let them stand up and let us hear it, let us listen respectfully to the case for that. I believe that it would be a disastrous decision by the Legislature if it was to bow to pressure, direct or indirect, to achieve such an unfortunate result in this island at present. We are elected here to address the inadequacy of the law as it affects all of the people, whether they have any religion or none.

I am interested in the question — the point has already been dealt with by Senator McDonald — of the bizarre speculations that we will assume the social characteristics and lifestyles of Los Angeles and California the minute this amendment takes affect, around the month of July. I want to make just three or four observations based on the evidence where divorce has been studied by sociologists and others. Firstly, countries have varied in the manner in which they introduced divorce. There is a huge spectrum of differences between, at one end, divorce in Portugal and, at the other end, divorce in Sweden.

There is a whole series of different conditions regarding the grounds on which divorce can be granted. They vary in relation to the grounds on which divorce is granted. They also differ in relation to the possibility of legal remarriage. They differ, equally, in regard to the time for introducing divorce. The one point that comes out is that the increase in the divorce rate is not, I repeat, related to the date of the introduction of the possibility of legal remarriage or the fact of the possibility of legal remarriage. In the first few years there will be applications and then after that the fluctuations in the rate are due to social and economic factors. We should be asking questions as to why marriages are breaking down in Ireland, what are the factors which reflect marital breakdown. Discussion is unrealistic, if we decide in advance of the discussion that no matter what we conclude on the evidence, we will not consider the possibility of allowing people to legally remarry. It makes a nonsense of the previous actions.

The rate relates to changes in social conditions, in employment mobility, in forms of participation. I would make a further point which is perhaps more controversial. If you take the United States, the comparison which is being made falsely by many people, people who are divorced, remarry not only once, but perhaps twice or three times. I would argue that the pursuit of the right of legal remarriage is buttressing the family rather than damaging it. The family is not dying in the industrialised countries of the world for precisely that reason.

It would take a long time to remarry three times in Ireland.

Five years.

Perhaps more, I will not be provoked to comment on the deficiencies. The suggestion has already been made, and it is one that I can be brief on because Senator McDonald has dealt with it, that the appropriate countries for comparison are the southern European countries such as Greece, Spain, Portugal and others. In 1980, when Spain changed the law, you did not have Bishop Cassidy's juggernaut flying down the hill, "a Spanish marriage damaged overnight". It is like the shower of hailstones affecting the flowering cherry blossoms; in ten minutes they are gone. If you pass this resolution on 26 June, we will be lucky in 1987, if you believe Deputy Oliver J. Flanagan, if there will be a marriage left in the country.

We should look unemotionally at some of these European countries. The Italian divorce rate is one in 20. In the middle of the seventies there were 12,000 divorces per annum. There are now 15,000 divorces per annum. Indeed, there is more marital breakdown in cities like Dublin, Cork, Limerick and Galway than there is in most parts of Italy, other than Rome and the major cities. We have higher marital breakdown. If the applications for barring orders, maintenance, legal separation and so forth that come before the Irish District Court are taken as indicating the rate of marital breakdown the number would be exactly twice the Italian divorce rate. That is the level of evasion of those who want to oppose this motion. Whose idea it is that we will go with the mix'um gather'um of legal responses to real facts and will not change the Constitution to provide an enhanced and adequate code of family law.

Another point that has been made in the arguments and in the latter pages of the papers since it was announced that this vote would take place, has been the effects on children. I want to emphasise a point here from the literature, and I will be very glad to be corrected if I hear the source of the correcting evidence in this regard, that on reviewing the literature on the effects on children, one must come to the conclusion that what children are affected by is the fact that marital breakdown itself and the breakdown in the relationship which constitutes the marriage, not by the ending of the marriage itself or by the remarriage. Where studies have been carried out they show a positive finding that children are affected by the quality of the relationship between their parents and that they recover. They are very resilient.

Equally it is true to say where you have remarriage — some loose research has been carried out — the children of the second union may sometimes make comparison of their economic and social circumstances with those of the children of the first union and the children of the first union may make comparison of their economic and social circumstances with those of the children of the second union, and so forth. Once that has been made, the reports go on to say how the children have dealt with the actual separation of their parents and their parents' decision to remarry. There is not one shred of evidence to suggest that the effects on the children are influenced by the legal act of ending the marriage or by the legal act of remarrying. I repeat, the children are affected by the quality of the relationship within the union, not by the terminating of the union or by remarriage. One letter writer said "I weep for the children". We do not need to weep for children in this country, we need to work for them. It is a fine indictment of all the people who have been weeping for all these decades that we are only now having before us a Bill changing the status of children born outside of legal marriage. It reminds one of the crocodile.

Another easy phrase that has been used is, "Perhaps we would, on both sides of the argument agree that marital breakdown is a very serious matter." Where we differ is in the possibility of divorce, the ending of a marriage and the possibility of remarriage. The questions facing the people are whether they allow the Legislature to legislate in a way not previously permitted within family law and allow the right to remarry. It is important that we decide on what will happen if the result of the referendum is positive and what will happen if it is negative. If the result of the referendum is negative, we are stuck with family law as it is. The Government could perhaps bring forward the legislation they have planned in relation to amending family law. Is that possible without changing the Constitution? There would be left the 70,000 people who are affected and those potentially affected and those of us who have no right to say we are not affected. The hurt of one person within a constitutional policy should be the concern of everyone in a genuine democracy. You are left with a series of half dead marriages that are not ended legally and with people who are not free to remarry.

There has been a most interesting suggestion in the speeches made in the other House against the Bill that all of this will result in the impoverishment of the children and the dependent spouse of the first marriage. In this regard we should look at the panoply of provisions that we make at the present time. There are different levels of assistance available under the social welfare code at the present time. In the case of a one parent household with two children, there is a whole series of benefits available from supplementary welfare to deserted wife's allowance, deserted wife's benefit, unemployment benefit, unemployment assistance, split payments and so on. They range for that parent with two children from £72.30 to £43.80.

There is a series of conditions. If the person is drawing a deserted wife's allowance, if a male person visits her, and a neighbour decides to report it, and the woman is alleged to be cohabiting, the allowance is withdrawn. She will have to seek to have it reinstated. That is the kind of society it is suggested we are wrecking. I wish we had addressed ourselves to this question of qualifications about cohabitation and the conseqeunces of it.

I will not stray from the purposes of what we are saying. I am simply saying that arising from the passing of the referendum, the law in relation to social welfare will have to be changed. The statement has been issued in the other House by the Minister for Social Welfare. She has given this assurance, not as Minister for Social Welfare but on behalf of the Government. It has been repeated by the Minister of State this morning. I request an even firmer statement of the Government's assurance that no woman who is separated will be financially disadvantaged if she gets a divorce. I know the Department of Social Welfare have already begun examination of the details of the implications of the changes in the social welfare code that will come about. All the anomalies that have been examined by the Commission on Social Welfare, which may not include the divorce implications, are most important. It will be urgent now as well to look at the three phases of the situation, the reformed unified single-parent support system and the arrangements for the interim.

Sitting suspended at 1 p.m. and resumed at 2 p.m.

I said before we adjourned that in the event of not passing the divorce legislation we would be left with the existing panoply of provisions I have described as inadequate. I have said also that if we pass the amendment to the Constitution there is a clear response at different levels which automatically follows. One can accept that the Government's intentions in this regard are responsibly stated. They have introduced a number of Bills that will amend family law. The statement of intent recognises that we need to surround the amendment of the Constitution with certain legal measures.

However, concern has been expressed about the period of time that will elapse before the reform of the social welfare code as a result of passing the amendment. I would welcome an even more widely publicised statement by the Government not only of their commitment but also of their intention — and this has been mentioned in two speeches already — to respond to the maintenance requirements that may be addressed by the Family Court, as has been stated by Government Ministers on behalf of the Government. The Government have said that they will consider such additional provision as was necessary. My point is that they need now to bring forward in the debate a specific statement that they will make a provision to ensure that a woman who is separated will not be financially disadvantged if she gets a divorce. The reforms that have been examined by the Commission on Social Welfare, which probably do not include the contingent legislative changes following the passing of this amendment, should be expanded to take account of such measures as are necessary.

That having been said, I really deplore the tactics that could be called the politics of fear that would suggest that it is not in a woman's interest to vote "yes" in this referendum. The fact of the matter is that the State has an obligation to provide for men, women and children irrespective of whether or not they are married. That should be regarded as being absolutely fundamental. Long ago I said that I wished the protection of children in the Constitution was better than it is. I hope it is not being suggested in a misleading way that the effect of the amendment is to destroy the protection that exists for the family and so on, and that it is, in fact, anti-family.

Article 41, amended, will in future be interpreted in its entirety and with all the protection it offers, as well as with all the trouble it offers in relation to the contradictory interpretation of some parts of the Article itself. Article 42 will be unaffected and all the protections of Article 42 will stand. To quote Mr. Justice Brian Walsh's decision in 1966 and not to advert to this latest decision of 1980 is unfair to Mr. Justice Walsh. It is also unfair to suggest that the 1966 decision is the basis in legal interpretation rather than the total Article as amended.

The procedures proposed are ones that are humane in so far as the concept of the Family Court, where it arises at present, is that people have access to the alternative to divorce that is supposed to exist. This requires High Court action and representation. It is long and expensive. It is not generally available. It is in theory but not in fact. The new family courts should be surrounded with all the additional skills that are available and that can address the question of the breakdown of the relationships that constitute a marriage.

I would appeal for something better than the rather melancholic support Senator Eoin Ryan appears to offer in the referendum. I have already said that I reject totally the model of the silent legislator. If one is going to say that one is changing the relationship between the electorate and its people. I admire the people, whatever their views, who stand up and say what they feel are the appropriate reforms in family law, but I do not agree with Senator Ryan when he says that "almost more in sadness than anything else I have to realise that perhaps the minority want this and we have to grant it. I will allow it to the minority but I know I am doing something that perhaps I will grow later to regret". I reject that melancholic vision because, in truth, it is this: I want these changes in the Constitution to improve family law so that the Legislature will have the right to make enactments that will address themselves to what are real social problems. It does us no good to say: "we are stuck in the modern world, would that we were living in the past. We are stuck in a society that is quasi-industralised, would that we were living in a simpler society". It is not Utopianism. It is a dark vision of living in the modern world. Legislators should legislate with hope, dignity, responsibility and a respect and sense of love for other people within society in the political system. If they find their melancholy overwhelming them it is time for them to think again about their relationship to the body politic. We should realise these points. Divorce as it is being made possible is a very limited form of divorce, surrounded with very restrictive conditions — perhaps too restrictive in view of the debates that took place previously in this House — but by comparison with other countries the grounds, periods of time and satisfying conditions are restricted.

It is important that the divorce debate should be interpreted within the context of the reforms of family law and the full reality of the causes and consequences of marriage breakdown in Ireland. I would appeal for people who are presenting the case for and against not to suggest divorce as a causative factor of marital breakdown. Divorce is one of the options which gives finality to a marriage which is over. People want to know that it is over. It also confers the right to be legally remarried. When we look at these two functions which it achieves, it is a consequence of marriage breakdown. It is not a causative factor in marital breakdown. It is not being suggested by those of us in favour of the referendum as a remedy for marital breakdown. All we are saying is that the option of legal remarriage must be included in any modern Legislature's response to the reality of marital breakdown today.

I reject the suggestion that the political parties should pull back from this. There is a middle ground between the total silence of legislators and the committed position that people have taken up on both sides. That is where you say "I am interested in this, but I am full of worries about what will happen". It is right to worry, but at the end of the day when one stands for election one has to make up one's mind how to vote —"Yes" or "No". One abstains on occasion and gives the reasons for abstention. In a responsible legislator's life, there are very few occasions when this happens, but at the end of the day one is in a legislature at this time with these problems and one has to give a response. To say that it is to be left to the people in the silence of their own minds is not sufficient. They are going to make up their own minds on how to vote when they go into the polling booths. It is incumbent on me to give examples.

The suggestion that the protection of Article 41 is affected by the amendment in false, misleading, damaging, mischievous and it is not helpful. The suggestion to delete section 3.2º of Article 43 of the Constitution is misleading, wrong, mischievous and damaging. What we are doing is pushing out the boat of fear and letting it go wherever it will in people's minds while standing back and saying "I have no position on this, I am leaving it to the people to decide" and so on.

I believe in the sovereignty of the people but I am against the manipulation of the people by fear, confusion or by anything else. Let us have a reasoned, tolerant and moderate debate. Let us debate factually as to whether Article 42 is affected or not. Let us debate on how Article 42 is affected and let the people decide, but to suggest that either of these is affected — the rights of dependent spouses and the rights of the first family — is unhelpful.

I heard, on a television programme last night someone saying that the rights of the first family are transferred entirely to the second family and children. The suggestion was that the dependent spouse of the first union had no rights left and that the children had no rights left but that their rights had been quenched and had passed to the second spouse and to the children of the second union. That is a monstrous untruth. The fact is that the protection of the children is there where it is, inadequately, in the Constitution and it stays. The interpretation in law of what constitutes a family is something that will derive from the interpretation of the totality of the Article that is being amended.

If one wanted to go back and look into case law one would have to look at the later decision of Mr. Justice Walsh in 1980 in the case ofG.v. An Bord Uchtála rather than rely on a previous decision distorting it, twisting it and using it to create fear. It is not helpful to the public to say the first spouse and children will have no rights, will have lost them all to the second union. Where both parents are killed and the children are parentless does this mean that they have no rights under the Constitution? The decision of Mr. Justice Walsh is a very interesting one in that regard, and is one to which the Fianna Fáil speakers in the other House did not refer.

The notion of silence that is total and silence that is qualified while one pushes out all these fears is a very disreputable approach towards this referendum. The people deserve better. The people should remember that. If people are afraid to say where they stand on this issue will they be able to stand on other issues? This brings me to the concluding section in what I have to say. I can understand many people saying to themselves: "at the present time we have a great number of people unemployed; we have a great deal of poverty; we have a great deal of social distress; there are many people suffering from bad housing." One can envisage a situation where a canvasser in this referendum went to a door and said: "I am asking you to consider voting `yes' to this Tenth Amendment to the Constitution", and the householder saying: "what has that got to do with me?"

I think that what is at stake is that the people who will have the courage to change the family law and curiously give the leadership about which Senator Eoin Ryan was talking, not through silence but through bringing forward legislative proposals, are precisely the people who would be most likely to intervene in the economy to make changes that are radical and that would bring about the economic reforms that would make an impact on unemployment. The people who are arguing against addressing the reality of broken marriages are precisely the people with the same mentality who would say: "one cannot interfere with the market economy; one cannot interfere with private competition; one cannot interfere with this." They would be suspicious of the State. I would urge all these people, bruised by the economic system and by unemployment with all its psychological effects, to realise that the spirit which confers a right to remarry is exactly the same kind of thinking which in time can be built upon to build a better and more humane economic system, and equally the kind of mind which opposes such a development is the kind of mind which would oppose the extension of the State into the economic realm which would create investment.

The other point I would make concerns — and the Government must make a statement on this in the next couple of days — the Government's programme in relation to filling the gaps in legislation which will be required in a number of areas and in a number of different Departments. I would emphasise that twice in the Dáil and again this morning when the Minister of State was speaking it was clearly stated that there was a commitment to honouring the maintenance recommendations by the family court. Let us all be clear on this. I know the social class composition of the legal profession as well as anybody else and I know the social class derivation and composition of judges. I do know of the courage of the Supreme Court, for example, when it legislated in vindication of a right where the Legislature did not even have the courage to consider legislating in relation to areas like family planning. On that occasion one could not but respect the reforming role of the Supreme Court.

I have argued in favour of us discovering our courage and accepting our responsibilities and stopping this whine about being alive in the modern world when we are going to have to live with this reality. That kind of whine is not a constructive participation in politics. It is also evasive. It is wrong. I think it is quite dishonest because what it is really saying is: "I know in my heart that any reasonable person on the concept of rights will be in favour of allowing the right to remarry but I do not want to accept the consequences of saying it too loudly."

I said at length in my speech that the question of divorce has to be considered not as a causative thing but as one option at the end of a process that includes reconciliation and that includes conciliation procedures. It has to be considered in the context of total family reform. I emphasise the point that the choice facing the Irish people is that we are agreed there is marital breakdown. The people must look at what exists at the moment and they must compare it with what is being proposed. They must decide as to whether they are satisfied that they are going to limit their compassion by allowing us to stop brutalising each other by separating and by having second illegal unions. Bigamous unions draw the law itself into disrepute. Are we satisfied to allow fathers and children to live without the shelter of all the protecting legislation that we have produced so far? That is one choice. We can decide we need a response in family law that will have sufficient range and that will include the option of the right to remarry. It is about the right to remarry. That could not be stressed sufficiently. That is what the entire debate is about.

Let us have an end to this nonsense about the first family. This debate is about the first marriage and remarriage. This is a very reasonable argument. I have said that on a 1966 decision the entire Fianna Fáil case in the the other House had been built on the idea that the concept of the family is based on the first marriage contracted, and only that. I have said that the same judge in a case against the same body but in different circumstances held, indeed, that what one spoke about was the result of a marriage between partners. It was the relationships that were involved. Marriage took place and the family was, in fact, the consequence of that action. Thus, I would make the point that if one partner dies and the other partner remarries we will then have two families and both families are members of families. The statement that the first family simply has fewer rights and that the children from it are not protected or that their rights have been quenched in favour of the second family, is not true. Let us have an end to this. Let us resolve this in this House. I think the public would thank us for that.

We are talking about a matter which, I believe, affects women proportionately more than it affects men. I find it very odd that someone would suggest that this is a way of trapping women into giving away rights. The suggestion was crudely made in a letter to a paper the other day when someone suggested: "you are going to give him his freedom and you are stuck at home." I would ask people once again to look at the protection that is there at the moment and the possibility of the transfer of assets. That is the existing situation. We should look at what it is proposed to give by way of possibility and direction to the family courts and to balance the two, and to ask who is protected and what degrees of protection arise.

Generally, in relation to this matter in a society that does not allow the possibility of remarriage women are suffering. It sets up a concept of marriage as some kind of prison. A letter writer to theConnacht Tribune of last Friday, Dr. Don Colbert, put the argument as to how many of us, if we were truthful, would not say that at some stage or another our marriages would have ended if divorce was available. Being a medical doctor he is free, of course, to use any kind of evidence without quoting any sources in relation to social matters. I would think about half. One might argue: “why half?”“Half” sounds good when one is writing a letter to the papers. There is no evidence needed, so that does not matter. One would not have that same value if one was going in for treatment for a medical matter. If the argument is that we need the prohibition on divorce in the Constitution and its exclusion from family law so as to protect marriage, what kind of marriage are we talking about? Does it not empty the concept of marriage of any notion of relationships that are worked at, relationships that are built, the respect of the other person involved, the whole business of trying to have some kind of humane response to each other's needs, and all the transcendent things that are possible within marriage? It is a concept of marriage as a kind of prison without parole, with occasionally some kind of passionate leave which the nullity process or the separation agreements have allowed. I hope that the profoundly anti-woman notion of the suggestion that nullity can be used as an alternative to divorce will be recognised. There will be many more themes that will be developed by other Senators.

On the question of minority rights, how real is our commitment to that? It is not a matter of the majority expressing itself in the Constitution or the minority expressing itself in the Constitution and the majority having to live by it. What you need if you are to balance majority and minority rights is a transcendant concept of rights, a view of rights exercised only in such a way that while the majority will see their basic beliefs vindicated they will not be vindicated through the suppression of the rights of other people. That was the basis of my original argument for a minimalist view of constitutions. I said that constitutions should be minimalist rather than big expansionary documents which put in social provisions curtailing any response to social change.

Yes, there is the issue of minority rights and I find it insulting to say that, for example, Northern Ireland should be compared with the Republic. Divorce is available in Northern Ireland. I hope that the Members of this House in the atmosphere of our discussing the possibility of our living together in greater conditions of peace are not suggesting that divorce was introduced in Northern Ireland because the people were, to quote Fr. Simon O'Byrne, infidels and heretics or that the consequence of it is that family life in Northern Ireland is one devoid of either emotional content or devoid of morality. That view or the view that the minority are the people who are asking for this amendment would be totally insufficient. All of us who want the family law expanded want the constitutional change for that reason.

Related to that is the genuineness of our commitment to a unification of this island through a consensus. We are tired of listening to people saying — I am not tired, I accept it — we want unification of this island on the basis of agreement. I presume by agreement, they mean some consensus which goes beyond narrow doctrines of any one particular belief or creed. How can one be accepted with any credibility as saying that you want unification built on consensus if you are not willing to concede pluralism? Then there is the question about the confidence we have in ourselves as a Legislature, of being able to separate Church and State. How often has it crept in here? I have not for one second — I think Opposition speakers will agree with this — ever questioned the right or the appropriateness of, for example, the bishops issuing their speeches or pastorals, or printing one or two million documents.

I raised the question before in the House as to how the Church secured her mandate to run the primary educational system. I said that I knew how I got my mandate to be in here but that I did not know how all the Catholic parents of the country decided at one meeting that the Catholic School Managers Association would exercise for the future, with State approval, taking all the State money for primary education on their behalf. I do not know when that meeting took place. The distribution of these 1 million leaflets is a consultation with the people. Those concerned should give careful thought to the consequences of this plebiscite. It is time many people discovered their confidence in saying that if we are to have a unified Ireland it must be pluralistic. I absolutely reject the notion that pluralism means some lesser standards, some kind of proneness or some kind of loss of immunity to some international diseases that are circulating. Pluralism means that one has thought more about the law rather than relying on ignorant bigotry. Pluralism means that one has a wider concept of spirituality than one particular religion. It means that one is unwilling to allow one single denomination to bully its way into the law.

If this referendum is not passed there will be an atmosphere in this country of depression and oppression that will damage our ability to speak to the people in Northern Ireland. It will damage the confidence that younger people particularly will have in the political institutions of the State. We should not under-estimate the importance of that point.

In the end we are being asked to vote on an issue of rights. A society that rejects this amendment will have slapped down the windows on the fingers of those who had hoped for a new future. In doing that there will be set up an atmosphere here in which there will be very little hope. We will appear to be condemnatory, to be void of compassion and not accepting a sense of rights. Against what are we protecting ourselves? We are protecting ourselves against the responsibility derived from the very fact of being human beings alive today trying to love each other.

I find it very ironic that the people who are asking us to reject the referendum have put the word "love" into their pamphlets. That is fascinating. If there is any semblance of love within relationships is there a need for iron bars around it as the Constitution of 1937 provides for? They are not asking people to love each other for life. They are saying to them, "You are stuck together for life, we hope it works out but if you want to undo it, go back and try to find a flaw on how you came together in the first place; we will make your children imaginary children and allow them not to be protected by the State". They are saying, "if you are well off you might get the State to annual your marriage but meanwhile all those who have been allowed to separate to avoid violence, the emotional destruction and the effects on the children are allowed by the State to separate". If they do separate logic suggests they are sustaining two households because if one spouse is living in one house and, presumably, the other spouse is living in at least a tent. The argument that this referendum is going to introduce the idea of supporting two households is as bogus as many of the other arguments.

An overwhelming "yes" vote is required in this Referendum to replace a clause in the Constitution which prohibits the fullness of a response in relation to family law. I support that. I am delighted that the Labour Party on three of the last five occasions have given a lead in demanding this change in the Constitution. It is a very restricted change, much less than I hoped for. The Labour Party Bill in this regard was probably a better Bill in some respects. It is important now that the amendment should be carried so that we can make the changes in the law that will allow the Legislature in a modern democracy to make the laws that respond to real problems.

Senator Higgins has asked that this be a calm, moderate and reasoned debate but I suggest — I regret having to do so — that taking into account the tone and words used by Senator Higgins he is not prepared to practice what he suggested others do. I will not deal with all the points he raised because I do not think I should. I do not think it is necessary to deal with his criticism of the right of any Church leaders, whether Catholic Church, Church of Ireland or Jewish to instruct the members of their Church as to what they should do.

I did not criticise them. I said they had a perfect right to do so and I expected them to speak.

Having said that, the Senator went on to say many other things about the leaflets and how wrong they were.

I could have said more.

If the Senator wanted to say more he should have said it and then we would understand precisely what he was talking about.

I apologise.

Anybody in the House will agree that the Senator's contribution was far from being calm, moderate or reasoned. That is what the Senator is asking the rest of us to do. In future the Senator should practice what he asks others to do.

The Senator accused people who do not agree with divorce of suggesting that the Government were anti-family. Nobody associated with the anti-divorce campaign said any such thing about the Government. They would be very stupid to do so because it is not true. However, I hope during the debate to point out where the Government were wrong and made a terrible mistake in introducing the amendment. They were badly advised but to suggest that the Government are anti-family or to accuse any of us of saying such a thing is to introduce a tone into this debate that I would regret and that I do not want to have in any part of this campaign. I never said any such thing.

I have no doubt that the intention of this amendment is to alleviate the very real difficulties of those couples who are no longer happy with their marriage state but, however well intentioned, this amendment appears to me to be one of those unfortunate instances where the solution will be worse than the problem it seeks to resolve. I believe the Government have been very badly advised on this issue. I remain convinced that in asking the people to adopt it, they are endeavouring to lead the country in a direction that most people do not want to go because of the injustice and hardship that the divorce amendment, if carried, will cause.

I believe I am not alone in the discovery that divorce has implications far beyond our original expectations. Daily we are surprised at discovering the new areas that will be affected by the amendment. This is not all due to the badly drafted amendment but to the fact that all of us had underestimated the nature and scope of the family until we were presented with the proposal before the House. This amendment proposes a fundamental change in our concept of marriage and, therefore, we must examine with great care the implications of what is proposed.

The first thing that strikes me on reading the amendment is that there is no mention of any period of separation, contrary to what many people were lead to believe. I have the amendment in my hand but I do not think it is necessary to read it out. I think it is important to stress that there is no mention in the amendment of any period of separation as quite a considerable number of people have the belief that it is part of the amendment. That may be part of the intention of the Government at a later stage, but the only thing that is on the table at this moment is the amendment and there is no mention of separation.

The second most striking feature is the use of the word "failure". We have all failed our spouses in some way or another. How many of these failures have to be added up to establish five years? I have no doubt that our eminent legal experts would have little difficulty in establishing that a marriage failed over some normal everyday problem that has recurred over the years. They would have even less difficulty in establishing the concept of failure in a marriage where the act or omission cited was serious. My argument is that the concept of failure is far too broad. It permits divorce without requiring that the couple should have lived apart for even one week, let alone five years. We have already had in the Dáil the amazing spectacle of the supporters of this amendment disagreeing among themselves over the meaning of this word. If the proposers of the Bill have difficulty in deciding on the meaning of its most fundamental condition for divorce, can we really expect any sort of uniformity of interpretation in the courts?

The Taoiseach has said that the concept of failure was final but the amendment refers to periods of failure. If more than one period of failure is possible, then quite obviously there may be cases of failure which are not final. I wonder whether those who drafted the amendment have told the Taoiseach about this? It means that his explanation is at variance with the words of the amendment itself.

It is obvious to me that the proposers of this amendment have failed an elementary test of constitutional drafting. The problem is that the establishment of failure would be central to the successful application for a divorce but it is undefined and is, therefore, open to the broadest of interpretations. This means that the second condition will be that much more easy to fulfil. I am arguing that the prime condition to be met when seeking a divorce is a broad and undefined concept of failure that has dissatisfied all shades of opinion in the Dáil.

I find it disturbing that such an amendment could be presented to the people as restrictive. I also find it disturbing that there was a claim that his amendment could enhance the stability of marriage. Marriage demands considerable determination if it is to succeed. There are many times in every marriage when difficulties exist. The opponents of this amendment have been accused of indulging in the politics of fear. It is a charge I resent. I am afraid of this amendment, I am fearful of its consequences. For instance, my sense of justice is outraged by the fact that parents would lose their constitutional rights as a family on the dissolution of the marriage. Should one of the former partners get married again, the rights of the second marriage would be protected by the Constitution while the spouse and the children of the first marriage would and could no longer be considered as a family unit under the Constitution. This has practical consequences that could affect the members of the first family even decades after the divorce. In the event of there being a dispute over entitlements under the Succession Act, the Constitution will give priority to the claims of the members of the second family. We were told again this morning that children's rights under the Succession Act will be unchanged. I wish that were so. Senator Higgins also told us.

Yes, when the Status of Children Bill is passed, without the passing of any amendment. That is true.

I think everybody would agree that Senator Higgins had the floor long enough to make all the points he wanted to make.

An Leas-Chathaoirleach

Senator Hanafin to continue without interruption.

I must admit that I wanted several times to interrupt Senator Higgins when I felt he was leading us down the wrong road. I wish it were true to say that the rights of children were unchanged. I regret to say that up to now that is not so. The children of the first family will not have the same constitutional protection as those of the second family. In addition, whatever is to be shared will, of necessity, be shared among more rather than fewer. So, in practice, the very existence of a second family diminishes the actual amounts that might be expected to accrue to the children of the first marriage. Does the Senator accept that?

The Senator should not encourage interruptions. We are in enough trouble.

If it would help I could say a comprehensive "no" to all the questions.

I am trying to bring a certain attitude back into the debate. The Minister for Justice has already conceded that the succession rights of the first spouse lapse with the divorce. So far as I can establish this could also, in some cases, include entitlements under whatever pension arrangements were entered into by the breadwinner of the family. To back up the claim of the Minister for Justice that succession rights of the first spouse lapse with divorce I will quote from his speech made on the Second Stage on 15 May:

As regards the spouses, it will of course, be a consequence of divorce that a person who has ceased to be married to another by reason of the dissolution of marriage would not be regarded as the widow or widower of the other for the purpose of succession when that other dies, and would lose rights as a result.

One of the most devastating consequences of accepting this amendment to the Constitution is the loss to divorced parents of their constitutional rights as guardians of their children. They would lose their constitutional rights to provide for the religious, moral, intellectual, physical and social education of their children. In short, a divorced person is deprived of the most important constitutional rights of parents. I find that offensive. I find it doubly offensive when I consider that this, the losing of parental rights, can be brought about on the insistence of just one spouse. No matter how innocent one party may be the other party, by seeking and getting a divorce, strips the other parent of fundamental rights over their children. That is so. I do not think anybody can accept that as being just.

It is only sensible for us to look to the experience of divorce in other countries in order to learn some lessons from it. Some lessons are particularly clear. Divorce has resulted in the impoverishment of women and children. Hardest hit have been older women and women with young children. The family home is sold on the granting of divorce in half of the cases in England, even where there are children in the home.

There will be a cost factor if divorce is introduced and this cost has not been spelled out by the proponents of this amendment. We should not forget that when this amendment has been defeated we will still be left with the problems it purports to resolve. We will have to provide for the needs of those involved in marriage breakdown and we will have to involve ourselves in programmes to minimise their occurrence. When this amendment is defeated we will have to ensure that the focus of concern does not shift from the victims of broken marriages. Many of these people will have been hurt by the tactic of unrealistic expectations by those who support this amendment.

However, if this amendment is enacted, generous settlement with a divorced wife would be contrary to the Constitution if it could be argued that the settlement infringed the constitutionally protected rights of the second family. A divorced wife would lose not only all rights to succession, as Deputy Dukes has pointed out, but also the right to appropriate the family home, and the right to appropriate it would belong to the second wife, even in some cases — this is a very interesting legal point I hope somebody will take up — this will actually diminish the children's share. Indeed, the second wife succeeds to all the rights that formerly belonged to the first wife. Furthermore, if a former husband endeavoured in his will to increase the benefits of his first wife, the second wife could block it if the increased benefits brought the former wife's share to over half the assets.

If the amendment is passed separated women will lose one of their strongest bargaining positions, their rights under the Family Home Protection Act. One of the most frightening aspects of the amendment is that it makes no reference to protecting a divorced woman and instead confines its attention to the position before a divorce is granted. In the event of a divorced spouse falling ill or on hard times there is no provision in the amendment to ensure that she will be adequately provided for in the new circumstances.

The injustices which this amendment inflicts on the first wife are seemingly without end. For instance, a court could be forced to grant a divorce where a husband with little means argues that social welfare payments constituted adequate and proper provision in the circumstances for the wife he wishes to divorce because the amendment does not require that provision be made by the husband at all. In short, it would be possible to impoverish a wife by transferring her from the care of a spouse to the social welfare allowance.

Working wives could find themselves cut off from maintenance because there is nothing in the amendment to protect the spouse who is not dependent at the time of the divorce. Should she subsequently lose her job she has no recourse to obtain more favourable terms. Indeed, because she is not dependent at the time of the divorce, the amendment gives her no right to claim maintenance in the future should her circumstances change for the worse. This is alarming.

If wives lose their protection under the Succession Act, the Family Law Act and the Family Home Protection Act, their loss is not ended because the court must have regard to circumstances and may have to reduce maintenance at a future date should a spouse remarry. He then has constitutional responsibilities and given the near impossibility, in present times, of maintaining two families, it is almost certain that the courts will reduce the maintenance to the former wife, who is no longer a wife protected by the Constitution.

I believe that the ramifications of accepting this amendment to the Constitution are in general to the detriment of married women. I am convinced that the consequences of accepting the proposed amendment would be to inflict a great injustice on all who may become divorced. This amendment would result in the reintroduction of significant discrimination and injustice against married women.

I have listened to this debate develop since 10 o'clock this morning. In all my time in this House it has been one of the most interesting debates I have listened to. Various points of view have been expressed and people have certainly spoken in a way that was genuine and interesting. However, some of the arguments that have been put forward are so flawed and so dangerous that it is necessary to take them up.

In saying that I would like to begin by referring to the model of the silent legislator referred to by Senator Michael D. Higgins and to say at the outset that it seems that the silent legislator is somebody who should come out today and who should express his views and feelings and forever remain unsilent. The silent legislator is the ghost that haunts and erodes Irish democracy. That kind of damage that he or she does or may do by his or her silence is something that should be put to rest. Equally damaging to Irish democracy and to Irish society is the mover of public opinion, who in the name of Christianity, charity or compassion puts forward arguments that are so flawed and so dangerous in relation to issues of public importance that they can do immense damage.

I listened to Senator Hanafin express his views in relation to this proposed constitutional amendment and whereas I accept the genuineness of his motivation, I cannot see that the arguments he put forward, particularly in relation to the spouses in a divorce situation or the children of parents who are divorced, are in any way well founded. These arguments which were expressed by him just now, and which have been expressed by other people in recent weeks, deserve to be challenged in certain respects.

It is a pity in dealing with this issue that we get hung up on words. We can speak about nullity, divorce, breakdown, failure and separation, but at the end of the day what we are talking about is human tragedy. In any family where the parents or the partners to the marriage upon which that family is founded are affected by legal or judicial separation, where one or other of the spouses is affected by a barring order, where a maintenance order is necessary to exist, where an acceptable form of bigamy exists, or where legislation has to be resorted to for the purpose of maintaining the rights of the family, then rupture, unhappiness and tragedy exists. Irrespective of the words or the language we use to describe that type of situation, as legislators we must face up to the fact that that type of tragedy and situation exists in our country.

Senator McDonald, when speaking this morning, made reference to the changing attitudes to housing by local authorities. Tremendous changes have occurred in recent years and local authorities accept the fact that they must now house one-parent families. This debate certainly makes us all realise and accept that enormous change has taken place in Irish society in the past 20 years. Other Senators have spoken about succession rights and yet it is a little over 20 years since the Members of this House and the Members of the other House were debating the very vexed issue as to whether the unfettered right of a citizen to make a will as he would wish should exist or should cease to exist. It is a little over 20 years ago that in the name of small businesses and of the small farmers that Members of both Houses of the Oireachtas were saying that the contents of Deputy Haughey's and later Deputy Lenihan's Succession Bill were dangerous. There were those who said that one must put the unity of a family business or of a family farm before the protection of partners or children within a marriage. The fact that we have forgotten about these arguments in a short space of 20 years shows the tremendous rate of change to which we have been subjected.

In this House in the past 15 years, the argument initiated by Senator Mary Robinson and by Senator John Kelly as he then was, as to the legal basis of maintenance did not find acceptance with successive Ministers for Justice. It was only in the mid-seventies that the basis of our maintenance laws changed from one of family misdeed to family need. The fact that that kind of change has occurred within the past ten to 15 years is something we also forget. The fact that we in the Houses of the Oireachtas failed to enact any proper family planning legislation until forced to do so by the Supreme Court must also be remembered today. The fact that the true interpretation of Article 41 of the Constitution which deals with the family and marriage has only begun to develop in the past 20 years is something that we must not forget. Finally, the fact that both Houses of the Oireachtas decided to establish a Joint Committee on Marriage Breakdown within the past three years again reflects the type of change which has occurred in our society in the past number of years.

I mention these facts because I believe it is against that background that the Tenth Amendment to the Constitution Bill must be considered. I also believe that in considering this Bill, one must have charity, compassion and Christianity. One must address oneself truthfully to the contents of this Bill.

I would like to commence my remarks in relation to the Bill by spelling into the record precisely what this Bill attempts to do. The Tenth Amendment to the Constitution Bill, 1986, proposes to do two things. First, it proposes to delete Article 41.3.2º of the Constitution which reads:

No law shall be enacted providing for the grant of a dissolution of marriage.

Secondly, it proposes to substitute for the words mentioned the words specified in Part II of the Schedule to the Bill. It is extremely important in debating this issue that we do not speak of the words to be removed as words in isolation but rather that we speak of those words as words which are an integral part of Article 41 of the Constitution, an Article dealing with the family and marriage. Likewise, it is extremely important that we construe the words to be inserted or the words to be substituted for the existing Article 41.3.2º as words which likewise will take their place within Article 41 of the Constitution and not words which will stand in isolation.

One of the tragedies of this debate so far has been the fact that the words to be removed and the words to be inserted have not been seen in that context. For the sake of expressing my point I want to read into the record exactly how Article 41 of the Constitution headed "The Family" will read if this amendment is accepted by this House and if the Bill passed by us is confirmed by the people. Article 41, as amended, would read as follows:

1.1º The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possesing inalienable and imprescriptable rights, antecedent and superior to all positive law.

2º The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

2.1º In particular, the State recognises that by her life within the home, woman gives to the State a support without which the common good cannot be achieved.

2º The State shall, therefore, endeavour to ensure that mothers shall not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.

3.1º The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

Where, and only where, such court established under this Constitution as may be prescribed by law is satisfied that—

i. a marriage has failed,

ii. the failure has continued for a period of, or periods amounting to, at least five years,

iii. there is no reasonable possibility of reconciliation between the parties to the marriage, and

iv. any other condition prescribed by law has been complied with,

the court may in accordance with law grant a dissolution of the marriage provided that the court is satisfied that adequate and proper provision having regard to the circumstances will be made for any dependent spouse and for any child of or any child who is dependent on either spouse.

No person whose marriage has been dissolved under the civil law of any other State but is a subsisting valid marriage under the law for the time being in force within the jurisdiction of the Government and Parliament established by this Constitution shall be capable of contracting a valid marriage within that jurisdiction during the lifetime of the other party to the marriage so dissolved.

That is how Article 41 of the Constitution will read if this amendment is accepted.

I believe that we cannot stress strongly enough the fact that the words to be substituted are words which will take their place within that Article, an Article which guards and protects in a special way the family; an Article which guards in a special way marriage; which gives woman a particular place within the home. Those facts are facts which have been ignored. It is interesting to note that in the 1922 Constitution which, but for the amending provisions of it worked reasonably well, there was no mention whatsoever of the family or of marriage. If one listens to some of the arguments put forward here today, particularly the argument dealt with very well by Senator M. Higgins that if we introduce even a restricted form of divorce marriages will automatically begin to collapse, one has to ask the question: "How did we survive between 1922 and 1937 when we were struggling with many difficulties in this emerging State of ours?"

The effect of this amendment which is in effect an enabling provision would be to restore the situation as existing in 1937. It is also extremely important in relation to what I have said to refer to the report of the Joint Committee on Marriage Breakdown. In chapter 7.8.30 on page 89 of the report the committee expressed the following view, and I quote:

The committee is also of the view that any amendment should be drafted in such a way as to ensure that the basic emphasis of Article 41 is not altered, in that the Article should continue to place a duty on the State to protect the family and the institution of marriage and to recognise the family as the natural primary and fundamental unit group of society.

To come back to my opening remarks those who have the ability and the power and the reason to mould and influence public opinion in this country have a duty to do so with honesty and in a way that is responsible. Listening to the arguments put forward by Senator Hanafin, even though I accept that he was not attempting to mislead the House in any way, I still must say that the argument put forward by him is so flawed and so dangerous as to mislead public opinion.

I want to move briefly to the whole question of the family as existing under our Constitution. Article 41 makes it extremely clear that what we are talking about is a family founded on marriage. Reference had been made by two earlier speakers to the case of the High Court decision of the prosecution ofNicola v. the Adoption Board. In that judgment of Mr. Justice Henchy it is very clearly spelt out as to how our High Court at that time interpreted marriage. I will quote briefly from page 622 of his judgment when Mr. Justice Henchy had the following to say:

Article 41 deals with only one kind of family, namely, a family founded on the institution of marriage. Article 41.1.1º accords the recognition of the State to such family as "the natural primary and fundamental unit group of Society, and as a moral institution possessing inalienable and imprescriptible rights, antecedent and superior to all possitive law;" and Article 41.1.2º gives the guarantee of the State to protect it in its constitutional authority, as the necessary basis of social order and as indispensable to the welfare of the nation and of the State. I am satisfied that no union or grouping of people is entitled to be designated a family for the purposes of the Article if it is founded on any relationship other than that of marriage. If the solemn guarantees and rights which the Article gives to the family were held to be extended to units of people founded on extra-marital unions, such interpretation would be quite inconsistent with the letter and spirit of the Article. It would be tantamount to recognition of such units as the necessary basis of social order and indispensable to the welfare of the Nation and the State.

For the State to award equal constitutional protection to the family founded on marriage and the "family" founded on extra-marital union would in effect be a disregard of the pledge which the State gives in Article 41.3.1º to guard with special care the institution of marriage.

I mention that because that is the definition given to the family specified in our Constitution — that is the family founded on marriage. The point made there was also confirmed by another decision of Mr. Justice Henchy, also reported in the 1966 Irish Reports. That is the decision in re J., an Infant. I will just quote three lines from the judgment at page 306 in that case where Mr. Justice Henchy said:

The crucial fact in each case is that the child's legitimacy and consequent membership of the family are founded on the parents' marriage.

I make those points because it cannot be argued that by virtue of the dissolution of the marriage that the State or anybody has a constitutional right to roll back on the children of a marriage the rights conferred by that marriage. In fact, that argument is confirmed by the decision of Mr. Justice John Kenny in the High Court in the case of Ryan and the Attorney General, 1965 Irish Reports, page 294. It was a case of extreme importance in the development of Irish constitutional law. I will quote briefly from that case where Mr. Justice Kenny said:

Not one of the counsel in this case has attempted to state what the inalienable and imprescriptible rights of the Family are and, as the Constitution gives little help on this I am in some difficulty in dealing with this argument. "Inalienable" means that which cannot be transferred or given away while "imprescriptible" means that which cannot be lost by the passage of time or abandoned by non-exercise.

That clearly spells out and indicates that even if a divorce takes place, provided that the marriage was properly based and properly founded in the first instance then the rights which that marriage conferred on the children of the marriage cannot be removed. The arguments which have been put forward suggesting that the case is otherwise are untrue and misleading and incorrect, I would submit. To suggest, as has been suggested, that children would lose their rights of succession is again a ridiculous argument.

The Succession Act of 1965 confers very definite rights on children and interestingly, the Succession Act approaches the problem of spouses and the problem of children in two different ways. The Succession Act provides for specific and definite legal rights for a spouse. The Act does not provide definite and specific rights for children but it provides that if a child has been ignored by a deceased parent the child has the right to make application to the court and the court will, by virtue of the provisions of section 117 of the Succession Act decide on the child's entitlement as a just and prudent parent would decide. One of the more interesting aspects of the Succession Act is the two different approaches adopted in relation to the legal rights of a spouse on the one hand and the legal rights of children under section 117 on the other hand. It cannot be stated with any logic that by virtue of a divorce taking place a child ceases to be a child of its parent and, therefore, loses its rights under the Succession Act. That argument must be disposed of.

The other argument which was brought in here by Senator Hanafin in particular and which has been paraded around the country in the course of this debate is that the grant of a divorce decree would remove from a spouse certain rights he had before. It is important to refer in this regard to a provision of the Succession Act, 1965, which deals with certain aspects of that. I refer to section 120 (2) and (3). It may be no harm to read them into the record as it seems that some people are not aware of what the Succession Act provides in relation to disinheritance or unworthiness to succeed. Section 120 (2) of the Succession Act states:

A spouse against whom the deceased obtained a decree of divorcea mensa et toro, a spouse who failed to comply with a decree of restitution of conjugal rights obtained by the deceased and a spouse guilty of desertion which has continued up to the death for two years or more shall be precluded from taking any share in the estate of the deceased as a legal right or on intestacy.

Section 120 (3) states:

A spouse who was guilty of conduct which justified the deceased in separating and living apart from him shall be deemed to be guilty of desertion within the meaning of subsection (2).

If one is to examine the Tenth Amendment of the Constitution Bill, 1986, and if one is to read the provisions which are to be written into Article 41 of the Constitution dealing with the family then one will clearly see that a person who is entitled to apply for a divorce is the type of person that could very well come within the orbit of section 120 of the Succession Act. Furthermore, the people who put forward that argument in relation to spouses have failed to look with any reason on the final sentence of the amendment which states:

the court may in accordance with law grant a dissolution of the marriage provided that the court is satisfied that adequate and proper provision having regard to the circumstances will be made for any dependent spouse and for any child who is dependent on either spouse.

That is something which is to be written into the Constitution. It is not something which will be a matter of mere legislation.

I make those points purely to try to express what seems to me to be very clear but which is giving rise to an amount of purposeful misinterpretation in relation to this issue. When I speak of purposeful misinterpretation it may be no harm to quote from the pastoral of the Roman Catholic Bishops published in Lent 1985 when, in dealing with the divorce question their Lordships said at paragraph 183:

In a public debate like this, especially if it is conducted in a campaigning atmosphere, promotion of one's cause and victory over one's opponents can be held to justify any tactic; verbal abuse of the opposing side can replace calm assessment of their arguments; emotion can prevail over charity and reason. In a debate so fraught with consequences for our whole society as this one, it is essential that opposing views be fairly stated and be honestly listened to and appraised. Contempt, scorn and abuse of one's opponents are unworthy.

In this regard those who I believe are purposefully putting forward what is an incorrect point of view in relation to very fundamental issues of this debate should take the advice given by the Catholic Bishops in Lent 1985. It was very proper and correct advice for their Lordships to give and I wish that the people who are propounding arguments which are without any sound basis would read the pastoral which was published in lent 1985.

While speaking about the Roman Catholic Church I want to say that the Church have indicated their dislike of the constitutional amendment as proposed. The Church have the right to express that point of view. It is good that the Church have expressed in a trenchant way that point of view. I cannot accept the view expressed by certain members of the Hierarchy and certain members of the clergy that legislators who are Roman Catholics are obliged to express a point of view and to legislate for a point of view which is totally in accord with the views expressed by some members of the Catholic Hierarchy.

But I can on the other hand understand why the Church and the Hierarchy should express certain worries in relation to this area. It is extremely understandable when one appreciates the neglect, scorn and dismissiveness which this State, through successive Governments, has shown to Article 41 of the Constitution. That is the Article which was introduced into the 1937 Constitution, nothing similar existing in the 1922 Constitution. That is the Article that protects the family, marriage and woman within the home. We have to ask ourselves as legislators today what we or our predecessors have done to protect marriage or the family in any meaningful way. One must compare our dismissiveness as legislators in this regard with the constructive role taken by the Roman Catholic Church in many areas.

One can refer first to the whole question of the preparation for marriage. The State has never concerned itself with the need for somebody approaching marriage to be prepared or have any understanding about what they are doing. The State will lay down all kinds of complicated rules in relation to one's ability or licence to drive a mechanically propelled vehicle; the State will impose all kinds of rules as to one's ability to enter various occupations and professions but the most important occupation of all, namely, marriage, which is sealed by the State, is one with which the State has not concerned itself in terms of preparing people for it.

In recent years the Catholic Church have laid down very definite guidelines for their members. The obligation is now imposed on most priests to ensure that they as ministers of their Church should not marry somebody unless the person is properly prepared. In relation to marriages in difficulty, what solace or help have the State offered to date? The answer is none. Yes, one must compare the non-activity on the part of the State with the very active role played by certain Church organisations and I refer in particular to the Catholic Marriage Advisory Council who have done tremendous, herculean work in helping people prepare for marriage, in helping people whose marriages are in difficulty and, indeed, in helping people whose marriages have ended. Their voluntary work must be compared with the lack of activity on the part of the State.

We have to ask ourselves about the law of nullity. I am not going to dwell at any great length on the whole question of the law of nullity. This morning I read the document produced by Declan Costello in 1976. It is no harm to put on record the foreword to that document. The second paragraph states:

The Government have decided in principle to introduce legislation to reform the law of nullity. Before finalising their proposals they would welcome the views of interested members of the public on the suggestions contained in the discussion paper.

The State has done nothing there. No wonder their Lordships are disillusioned when they see on the other hand the developing theology of marriage which has allowed canonical nullity to develop while on the other hand the State has been seen to do nothing in this area.

We have the situation of the unmarried mother, a person whom our society did not recognise as existing until very recently. We are not doing sufficient for the unmarried mother. The Church, through the CURA organisation, are doing tremendous work and are giving solid support that is needed. It is extremely important to appreciate that the State has done nothing to protect marriage until very recently. It is right that one should pay tribute to Deputy Fennell the Minister of State responsible for Women's Affairs, at the Departments of Justice and the Taoiseach who has seen that much has been done in the life of this Government and that a lot will be done in the remaining 18 months of this Government.

The fact that a Bill dealing with the recognition of foreign divorces will shortly come before this House; the fact that the Minister of State recently published a Bill dealing with the question of illegitimacy; the fact that the Government have reasonably tackled the introduction of proper family planning legislation would suggest that the Government are doing something. The activity of the Government in this area must be seen against a background of total inactivity by previous Governments which gives rise to reasonable causes of suspicion on the part of the bishops.

A question has to be asked concerning the kind of society we want. We as legislators have to decide what kind of Ireland are we going to have in ten, 50 and 100 years hence. The decisions we make here today will have a certain bearing on the moulding of the Ireland of the next century. We have to ask ourselves, do we want to move towards a more pluralist society? Do we want to retain the confessional state that has won acceptance in this country since the beginning of this century? We do not want that approach. We want an opening of the shutters. We want to create a society where the views of everybody win equal acceptance and people have the opportunity of considering every point of view dispassionately.

I am a Roman Catholic and I appreciate the benefit that a happy family life is and also what family stress and strain can be. As a country solicitor I realise that there has been a massive increase in problems in this area for the past 13 years. I commenced practice in County Mayo in 1973 and I recall the first family law case that came into my office. I was amazed. It was an exciting case. It was a unique matter which I had not come across before and it was a problem I had not believed existed. It was unique in the sense that it was not accompanied by anything similar for some period of time. In 1986, 13 years later, I deal constantly with problems arising under the various headings of matrimonial disharmony where various forms of family law and matrimonial relief must be acceded to. It is foolish to say that the problems do not exist. It is foolish and a lie to say that such problems do not exist in my constituency of Mayo West. If I say otherwise I am not being truthful to this House, the county or the people I represent. This is a very severe problem which is being tackled by certain interest groups within our society. We, as the Legislature, have not sufficiently tackled the problems which exist.

I should like to say something which I had not planned to say at the outset. Having listened to Senator Hanafin's contribution and having listened to remarks on television last night I feel compelled to say that this is the view the Fianna Fáil party have expressed in relation to these issues in the course of the debate in the two Houses. Senator Hanafin adopted an approach very similar to that adopted by Deputy Haughey. That is a compliment Senator Hanafin may not like to hear from me but Deputy Haughey used a phrase that there was a price to be paid for divorce. He accused Government Deputies of trying to bring dissent into the debate when no dissent had been brought in by Government Deputies. The same situation arose in the House today when Senator M. Higgins was accused of attacking interest groups, the Church in particular, something he did not do, as I listened to his entire speech.

That kind of approach from a political party who have expressed no positive view on this issue is unworthy of them. It is unworthy of a political party which had the radicalism in the mid-sixties when members of their party sat on the committee on the Constitution to express the view that changes were needed in the Constitution at that time. It is interesting to note that among those who sat on that committee were none other than Deputy Sean Lemass, Deputy Molloy and Senator Eoin Ryan. They were all on that committee which reported in 1967 and which suggested that Article 41.3.2º of the Constitution should be deleted. I use the word "radicalism" because having listened to the arguments emanating from certain sources today the points of view expressed by the committee in 1967 in relation to this Article must indeed have been radical.

The Frankenstein type of comments made in the Dáil by Deputy Woods are frightening. I condemn that comment and the dramatic way in which it was expressed. I condemn it also for the total lack of imagination on the part of the Deputy in making that comment. That type of comment is reminiscent of the view expressed by Lord Campbell who was chiefly responsible for producing the first Divorce Act in England in 1857 and only a few years after the passing of that Act the annual increase in divorce even then, was causing Lord Campbell some alarm: and he said:

I have been sitting two days in the divorce courts and like Frankenstein I am afraid of the monster I have called into existence. There seems some reason to dread that the prophesies of those who opposed the change may be fulfilled by a lamentable multiplication of divorces and by the corruption of public morals.

Deputy Woods should have been original.

The Senator is not entitled to attack Deputies.

I am not attacking anybody.

The Senator is sailing very close to the wind.

I am trying to bring a level of clarity into this argument. The views expressed and the non-views expressed by the principal Opposition party indicate very clearly that they are nothing but a political Rubik cube, a party with various sets of views that must be presented to different sets of people at different times to win the maximum political approval. It is very frightening that a Rubik's cube type of political approach should be introduced when dealing with an issue so serious as that which we are now debating.

I want to conclude my remarks by referring to the specific terms of the Bill. I will refer to these in greater detail on Committee Stage. I am glad the Government have published a statement of their intention with regard to marriage, separation and divorce. I am also glad that the Government have indicated very clearly that these matters will be dealt with by a court established under Bunreacht na hÉireann and that that court will be presided over by a Circuit Court judge who will be a member of the panel of Circuit Court judges who will deal specifically with family law matters.

I say to the Minister of State that I would like to see the State injecting into our courts system, particularly into that aspect of our court system which will deal with family law, sufficient funds to ensure that family law matters are dealt with in surroundings which are acceptable to the public who have to resort to the procedures we are discussing today. I should like to take the Minister to Westport District Court on the first or third Friday of any month or to one of the more remote district courts which I attend where family law matters are disposed of. I should like to show the Minister the draughty, dirty public hallways of these courts where people in family disputes have to wait until their matters are dealt with. I would like to show the Minister the public benches where people have to sit uncomfortably until their disputes are dealt with. I would like to show the Minister the actual rooms wherein these matters are disposed of. It is extremely important that the State accept it has a role which supersedes the role of the local authority and that funds be made available to provide acceptable surroundings wherein matters of this nature can be disposed of.

Having said that I welcome the statement of 10 May by the Government that divorce matters will be dealt with in the Circuit Court. I welcome the fact that there is a movement towards specially trained judges. I am not happy with the idea that judges dealing with family matters will deal with nothing else because one of the great attributes which members of our district and circuit court benches currently have is their broad knowledge of society and of other legal matters which can help them in dealing specifically with family law. I have a somewhat mixed view on this but I have no mixed view on the fact that judges dealing with family matters should have specific training in that area. The question is whether they should be confined to dealing with family matters.

Secondly, I have read the arguments put forward in the other House and elsewhere and the Minister's comments this morning on difference between "breakdown" and "failure". I agree with the concept of failure. It is a more embracing concept. It is a concept which in a sense will be easier for a court to interpret because what is or is not failure is very much a question of fact. It is a concept which can be determined in a more exact manner than the concept of breakdown. These are words which we will deal with further on Committee Stage.

I am glad to see the other additional constitutional safeguard which states: "any other condition prescribed by law" spelt out in the statement of intent. Despite the argument put forward by Senator Michael D. Higgins, which I agree with in many respects, that we should have minimalist Constitutions. I am reasonably happy with the final sentence of the amendment which is that:

the court may in accordance with law grant a dissolution of the marriage provided that the court is satisfied that adequate and proper provision having regard to the circumstances will be made for any dependent spouse and for any child of or any child who is dependent on either spouse.

That is something that the court must consider. It is an aspect that has I believe not been observed or has not been argued sufficiently by those who propose this amendment.

I would like to complete my comments by complimenting — and I do not do this in any hackish way but in a genuine sense of appreciation — the Taoiseach, the Government and the Minister of State for the manner in which this matter has been approached. I believe that in retrospect the Government will be thanked, first, for establishing the Joint Committee on Marriage Breakdown, second, for ensuring that the maximum amount of consultation took place before a provision of such a fundamental nature was put to the Houses of the Oireachtas and, thirdly, for ensuring that there is adequate time for debate.

This is not the first time a debate on divorce has taken place in the Seanad but it is the first time we have examined a Bill to remove the ban from the Constitution. The reason for this is that any Bill to amend the Constitution must first be introduced and passed by the Dáil before it can be introduced in the Seanad. If that had not been the case I can assure the House that I would have introduced a Private Members' Bill some years ago to get the debate started. In 1967, 19 years ago, I made my first public statement calling for the removal of the ban on divorce. It formed part of an inaugural address to the law society in Trinity College and by coincidence later that year, in December 1967, the all-party committee on the Constitution to which Senator Durcan referred recommended the removal of the total ban and the substitution of a different provision. It is a great pity that the opportunity was not taken at that time to hold a referendum. I did not greatly favour what the committee had proposed in seeking to substitute a provision which would have been discriminatory on religious grounds, but had it been charged this appearance of an immutable situation would be removed. We should remember that an all-party committee recommeded change in 1967, and yet nearly 20 years later we are struggling with the thought of it. When I say that nearly 20 years ago an all-party committee recommended the removal of the total ban on divorce, they were aware of the importance of the issues involved. I am feeling somewhat lonely on this side of the House. I have been entirely on my own on this side of the House for the past half hour. There has not been another Senator here for this debate on the most important issue facing this country.

I referred to that matter this morning.

There is not a soul here and that has been the case for more than half an hour. I think it is disgraceful.

It is a clear indication of the attitude of the Opposition party.

Senators were aware that I was the next person to speak and may have taken certain steps accordingly. Nonetheless, it is pretty disgraceful that on such an issue we do not have an attentive and well attended House considering all the arguments that are being put.

I was referring to the first public commitment I made on the subject 19 years ago. In more recent years I have, in fact, drafted two Bills to amend the Constitution by removing the prohibition on divorce and substituting different wording in Article 41. As such, I have given considerable thought to what is involved in amending this part of the Constitution. The first Bill was drafted for the Labour Parliamentary Party in 1980. The text was accepted by the parliamentary party but it was not tabled as a Bill at that time because the Labour Party were in Government and opted for tabling a motion instead, calling for the introduction of a Government Bill. But, since this is a House of record, it may be worth while putting the text of that first attempt on to the record because it shows the context in which the Labour Party had approached this issue. What was envisaged in that 1980 Bill was a change in Article 41.3 with the substitution of two new sub paragraphs as follows:

1º The State pledges itself to guard with special care the institution of marriage and to protect it against attack. The State shall take measures to encourage adequate preparation for marriage and to promote the stability of marriage.

2º It shall be the duty of the State in making provision in cases of marital breakdown to seek reconciliation between the parties to the marriage, to provide for the physical and economic protection of vulnerable family members and to afford a means for the dissolution of marriages which have broken down irretrievably.

That was one model of a Bill. The second Bill which I drafted was tabled on behalf of the Labour Party by Deputy Mervyn Taylor on 1 November 1985. It gave rise to the first full debate on a Bill in the Dáil and vote on Second Stage. It also showed the willingness of several Fine Gael Deputies to support the measure despite the pressure from the Taoiseach not to do so and to await a Government Bill. It is worth putting the text of that Bill on the record of this House to show the alternative approaches which have been considered and which might have been possible. It reads as follows:

The State pledges itself to guard with special care the institution of Marriage on which the Family is founded and to protect it against attack.

This shall not be held to mean that the State shall not in its enactments provide for the grant of a dissolution of marriage in such circumstances where it is clear that due to the breakdown of a marriage the parties thereto cannot reasonably be required to continue to reside together as husband and wife.

The power to grant a dissolution of marriage shall be exercised only by Courts established under the Constitution and no grant of a dissolution of marriage shall be made unless the Court is satisfied that the interests of any dependent spouse or child have, in so far as is just and practicable, been protected.

My reason for putting those other versions of a possible amendment on the record of the House is to show that amendment of the Constitution is quite a limited exercise. We have to bear in mind the considerations and constraints on anyone and indeed on any Government in drafting a Bill of this nature.

I propose to examine the matter under four headings. Firstly, the nature and extent of the social problems which it is thought to either improve or redress; secondly, the role of law in our society; thirdly, Church/State relations and the protection of minorities; and, fourthly, the practical effect on the existing position, including the existing position of the spouse and children of a marriage. There may be other matters and issues which we will have to concern ourselves with, but under those four headings it is possible to deal with the major social, political, religious and minority rights issues which occupy us in examining this Bill to amend the Constitution.

I will begin with the nature and extent of the social problem. The debate on this subject has already given rise to a great deal of hypocrisy and humbug. We may well have different perceptions on the extent and scope of marriage breakdown, but it causes me irritation at best — and blind fury at times — to hear lip service paid to the extent of marriage breakdown, but no willingness to face up to the consequences of that and to take positive steps about it. Although a great deal of lip service is paid, and the words "compassion" and "pity" are used frequently, there is little clear evidence that politicians on all sides of the debate are concerned about the extent of the social problem which this Bill is designed to help.

Great emphasis is placed on the sanctity of marriage as a lifelong commitment. That is a view shared on all sides of the House, but it is important to remind ourselves that the commitment to that does not necessarily make it happen in practice. In fact, the reality is that marriages have broken down and will continue to break down. Also the constitutional prohibition on divorce, as Senator Durcan emphasised, is not something that has been with us since the foundation of the State. It is not something that has been with us since the Irish people expressed a desire over the centuries to be a nation and so on. It is with us for less than 50 years. It is a recent provision, introduced in 1937. I will pose the question Senator Durcan posed: is it suggested that prior to 1937 Irish marriages were inherently vulnerable and unstable? Of course not.

Perceptions, then, of the content of marriage breakdown vary. This can be seen from the differing estimates which are contained in the report of the Joint Committee on Marriage Breakdown. We have debated that report here in the Seanad. I was one of the Members of the House privileged to take part in the work of that committee. I recall that when we debated the report a number of us who had served on the committee made a very simple point that although we thought we knew the extent of the problem of marriage breakdown in Ireland it did not really hit us until we got the huge flood of submission — over 700 written submissions — to the committee, many of them personal accounts of the harrowing suffering of individuals caught up in the problem of marriage breakdown.

Anyone who has been through the trauma of a broken marriage, or has a friend or relative who has been through this misfortune, knows too well the pain and suffering involved and the lack of real protection and support which exists at present. Indeed, add to that the lack of dignity, the lack of any defined social status. These people feel they are in a legal limbo. They feel that they are social outcasts in our society and deeply resent being forced to live in a stable relationship and have children in that relationship without being able to legitimise that relationship. These people are honourable, upright and wish to legitimise the commitment they have made emotionally, but are prevented from doing so. For objective reasons, compelling objective reasons, we will continue to have a substantial and increasing incidence of marriage breakdown.

Social pressures and influences which lead to marriages breaking down are already prevalent in our society and are in no way diminished by the absence of divorce. In the context of a constitutional prohibition on divorce we have a serious problem of marriage breakdown because marriages do not in fact take their cue from whether we have a prohibition in the Constitution or not. A marriage is a personal relationship. It comes under the pressures that are in our society; pressures of urbanisation, pressures of the rising expectations of both parties, but particularly of women. It comes from the fact that women are no longer prepared — as their mothers and grandmothers were — to put up with the appalling nightmare of coping in the privacy of a home when a marriage has broken down, and perhaps worse, perhaps enduring very real physical or mental cruelty. We were sheltered from full insights into this by the conditioning for a very long time of women in society; that their role in life was to put up and shut up, and pray for their spouse, and that they would find a special place in heaven as a consequence of this.

Other pressures relate to economic difficulties, and to the fact that there is so little preparation for marriage. All these factors are prevalent, flowing from the increasing pressures of our society. Housing policies are, I believe, emphasising the pressures on couples. Couples housed in housing estates around Dublin, where it is the nuclear unit of the parents with their children, lack to a considerable extent the support and help, both financial and emotional, of the extended family.

Therefore in looking at the reality — in accepting the pressures and social problems that we have at the moment — we must be honest in recognising that marriage breakdown exists and will continue whether we introduce divorce or not. In other words, it is true to say that divorce is really a death certificate for a marriage which has already totally broken down. Marriages have irretrievably broken down in this country and those involved may want a death certificate because, in effect, they want a right to remarry or a right to define their status as the parties to an ex-marriage.

Those are some of the social considerations which the Government and those of us who are elected representatives must address. There are other social indicators which should also concern us. The marriage rate has been declining steadily for more than a decade. This is identified in the report of the Joint Committee on Marriage Breakdown at page 102. There is a table of marriage rates. It shows a very notable decline in the table which stretches from the year 1971, where the marriage rate was 7.4 per 1,000 of the population, to 1983 where it had fallen to 5.5 per 1,000 of the population: A fall of practically two points in just over a decade. It is continuing to decline. Why is this so? I did not hear Senator Hanafin or some of the other concerned speakers on this side pose that question. Those who are worried about marriage might ask themselves why marriage is declining in Ireland when the marriagable population, in demographic terms, is actually increasing? The rate of marriage is falling. Why?

There is considerable evidence that the reason for the decline is that young people are reluctant to become involved in an institution which may become a trap for life, regardless of how the relationship has worked out. Also — and this is a matter which again does not get sufficient attention, particularly from those who are against this referendum — the other dimension is that the absence of any divorce in Ireland has conditioned our society to accept stable relationships outside marriage. In every town in Ireland you have people living together who are not married. People do not really question it any more because they know the situation. One of the parties has already been married or else they are young people who are simply not marrying. It does not have the social stigma that it used to have. It is not the totally radical behaviour that it would have been.

As a society that pays such lip service to marriage, are we content about that? Are we content to have marriage so unattractive an institution that it is the big turn-off for our younger generation? We have good reason to be concerned about this because of the pattern in other European countries that we are close to culturally, and through our involvement in the European Community. If one looks at the situation in France, Italy and Germany, there is a very significant tendency among young people not to marry. They even enter into written contracts which are not marriage in some instances; in others they do not believe it is right to be bound at all in contractual terms. They believe that this is a negation of their love. It is a very idealistic view and it is not concerned with the security of the future, pension rights and all the rest of it or succession rights or any other rights. It is part of a very definite trend which is even more pronounced in Scandinavian countries. There, among certain groups of young people, the radical thing to do is to marry! If people say they are going to get married, it becomes a surprising event. We are not immune from all of that.

I would warn those who are getting on a high pedestal at the moment and preaching about marriage, that we have good reason to be very worried about the state of marriage in this country at the moment. That is in the context of the prohibition on divorce, and it is worsened by the prohibition on divorce: the situation is more dangerous, more volatile because of that. The clear evidence of decline in the marriage rate is an important social indicator. Parallel to that, we have another social indicator which should concern us, which is the high number of births of children outside marriage. These account for more than 8 per cent of births at present. I think I am right in saying that that percentage has doubled within a period of a decade. It used to be 3 per cent to 4 per cent. It is now 8 per cent of births. Even that is an underestimation of births outside marriage, because the figures would not take into account births to couples who may well believe they are married but who are not validly married: for example, couples who have remarried in a Catholic Church after a Church annulment. Their children would probably be recorded as being children of a marriage, even though in strict law they are not and should not be. Again children of couples who have remarried after one of the parties has obtained a foreign divorce which would not be recognised would not be included.

When we look at the nature of the problem — I do not think anybody has denied that we do have a very serious problem — an honest examination of these social indicators and an appraisal of the changed nature of our society provide the most convincing evidence for the social necessity to allow remarriage when the first marriage has failed. Senator Higgins laid emphasis on the nature of the right, which is the right to remarry. I very much agree with him there. It is, in effect, the essence of the individual right which we are talking about. Of course, as he has said — and I want to develop this point — the right to remarry exists in our society at the moment, but it is extremely restricted. There is a right to remarry if a partner dies. A widow or a widower may remarry. If somebody were to suggest that we should not allow remarriage of a widow or a widower, there would be an outcry. It is fairly clear that such a move would be contrary to the European Convention on Human Rights which has an explicit guarantee of the right to marry.

The courts under our Constitution have identified an unenumerated right to marry. It is not expressly set out in the Constitution but it has been identified as an unenumerated personal right of the citizen, a right to marry. The State cannot, even under our own Constitution, restrict that right by prohibiting anybody who had been married once from marrying again if their partner had died: in other words a widow or widower. Another instance where we allow the right to remarry is where a person has obtained a foreign divorce which our courts would recognise. If a person has obtained a foreign divorce based on the domicile of the husband in that country; then we allow a right to remarry. What we are talking about is the extent to which at present we recognise and uphold the right to remarry, and whether we are prepared to extend that right to remarry to circumstances where the marriage relationship has totally broken down, where care and protection are afforded to any dependent spouse or children of a marriage and where there is no social sense of logic in continuing the relationship between the parties.

I have been considering the social context and the social problem which we are seeking to redress. I turn now to another aspect which has been mentioned in this House and has been part of the public debate: the role of law in society. As Members of the House will be aware, there is a whole literature about this. There is a whole jurisprudence on the role of law in society. There are different views taken of the role of law. Those who see the constitutional ban on divorce as being essential for the preservation of marriage have a particular view of the role of law and morality. They believe that law must enforce morality. However, I would like to have us reflect on that proposition that law must enforce morality — particularly when we are talking about the sphere of personal relations between people. I am not saying marriage is an entirely private matter. The State has an interest in marriage as an institution and an interest in regulating marriage. It is not entirely a private matter.

Nonetheless, when it is emphasised that law in this area must enforce morality — which is really what is being proposed — I am suggesting that is a contradiction in terms because it is not morality but the law which is enforced. It is not morality in the sense of individual values. It is simply the prohibition in the law which is enforced. Morality is essentially concerned with conscience and the exercise of individual choice. What happens then, when law is given a role of appearing to enforce morality, is that the law will become evaded in various ways which in itself undermines and confuses the moral issues involved. This whole question of the constitutional ban on divorce is a very good illustration of what I am saying. I do not want to be too abstract about it. Because the law intrudes by way of a prohibition in this area, people may have to take alternative action. The prohibition on divorce does not prevent the marriage relationship from totally breaking down, so people have to take a different course. They accommodate the reality of their lives.

What do they do? As I have already said, young people live together without marrying. A significant number of women in a second relationship, change their name by deed poll, so that at least in a superficial sense they appear to be quasi-married. They gain some semblance of dignity and respectability in their relationship. Those who can afford it go abroad and get a foreign divorce. I said before in this House — and it is increasingly true — it may not matter to those people much any more whether it is what you might call a real divorce or a phoney divorce based on a fortnight in Reno or some other accommodating State or statelet. It may not matter very much. If you come back saying you have been divorced, then everybody takes you as being somebody who can subsequently marry. You are treated as remarried by the taxation code, your neighbours and everybody else. So we have this very real undermining of the values which are supposed to be preserved. Catholics can secure a Church annulment and remarry within the Catholic Church, thus committing the crime of bigamy.

We have had over the years and continue to have, a significant number of so-called remarriages which, of course are bigamous marriages. This is a blind spot of the Director of Public Prosecutions. There is a total failure to enforce the law, so that we have an undermining of the values of the law and we do not seem to want to know or want to care.

There is also a pressure on the civil courts to develop the law of civil nullity to meet the hard cases coming before them. The number of petitions for nullity have increased a hundredfold in the last couple of years. There is a pressure on individual judges to grant decrees of nullity in circumstances where even five or ten years ago, the advice from a barrister would have been that there was no case for a nullity. The law is developing because of these pressures. Now — as has been emphasised by a number of Senators — it is not good for our society if we expand civil nullity as a backdoor for coping with marriage breakdown. It is the worst possible way to approach it because we are pretending there was no marriage; we are pretending to children their parents were never married, we are pretending the couple were not capable of entering into the marriage relationship for one reason or another. So, in the name of being moral about this, we are busy debasing the currency while paying lip service to the sanctity of marriage.

There is another aspect to this relationship between law and morality. The view taken by the Catholic bishops in their statements is that marriage needs the constitutional prohibition on divorce in order to endure. I find that very strange.

I find that to be a very dubious approach to the institution of marriage. I find it lacking in confidence in the importance of the institution of marriage. The viewpoint reflects a definite ethos and culture. It is the old authoritarian approach to these issues where the authority was handed down from above by way of either mandatory requirement or prohibition. It was somehow believed that social order could not operate otherwise. We have moved away from that in all kinds of other spheres but, in this area, authoritarianism appears to be behind that perspective.

I have been talking about the relationship between law and morality and the perception of the role off law in our society. That brings me, logically, to the next heading I had set out, namely, the area of Church-State relations and the protection of minorities. It used to be said that the retention of the constitutional ban on divorce was not just the Roman Catholic Church's view but was supported by the other Christian Churches in Ireland. I have frequently heard the view put across that Protestants do not want divorce. There is an invidious argument being relied on there. It leads to the other view, which was expressed by some bishops at the Synod of the Church of Ireland this week, a rejection of the implication that somehow they were actively looking for divorce and did not have any moral standards. So you have the two sides of the approach.

However, the view has been put forward that the prohibition on divorce does not represent only the doctrinal approach of the Roman Catholic Church, but that the Christian Churches all want to retain that prohibition. That was certainly an argument put forward in the sixties and the early seventies. The evidence is now clearly the other way. That was one of the important contributions of the Committee on Marriage Breakdown, which, you, a Leas-Chathaoirligh, and Senator Bulbulia served on. We heard the clear evidence from representatives of the other Churches. They made it absolutely clear what their views were, and that they actively sought the removal of the ban on divorce. So did the representatives of the Jewish faith who put views to the committee. Since then the Taoiseach and Minister for Justice had discussions with the representatives of the Churches and that again became the clear position. It is only the Roman Catholic Church which requires that Roman Catholic doctrinal teaching be retained by way of prohibition in the Constitution. If we decide not to remove the prohibition on divorce this must be seen as a triumph of Catholic doctrinal teaching over the views of minorities. We cannot deny this because they have told us they want the ban removed. If we say, "Sorry, the largest Church wants it there, then how can we possibly escape from the reality of having continued a doctrinal tenet in our Constitution and the political consequences of that?

There is another aspect of Church-State relations I want to refer to. That concerns the published statement by the Catholic bishops which is to be circulated to a million homes, opposing the Constitutional referendum. I find that statement and the clear involvement of the Hierarchy very difficult to square with the clear and ringing guarantee given at the public session of the New Ireland Forum. Again, I had the privilege of being a member of the Forum, I was the person from the Labour Party who was questioning the bishops. Before the Forum moved to the posing of questions from individual representatives to the bishops and those who were representing the Catholic Hierarchy, there was a public statement made on behalf of the representatives of the Catholic Bishops by Bishop Cathal Daly. I recall the deep commitment in Bishop Daly's voice. He spoke with an urgency and a passion. There was one sentence at which he was interrupted by applause from everybody in the hall and he had to stop. That applause was for his clear statement that the Catholic bishops would champion the civil rights and liberties of Protestants in Northern Ireland in the context of any proposal for constitutional change. That was a very powerful, very moving commitment by Bishop Cathal Daly, made formally on behalf of the bishops in the context of a forum examining possible constitutional developments in the context of a new Ireland. It was the one statement which drew applause from all sides of the political divide and from those present.

How can this championing of the civil rights and liberties of Northern Protestants be reconciled with blocking the introduction of similar civil rights in the South? I do not for a moment view divorce as being a matter purely for Protestants, or for non-Catholics, in this State.

By virtue of the demographic structure and religious adherence in this country most people are Catholics. Many of those want the right to consider remarriage, and to consider the possibility of availing of divorce. At the same time, it seems to be totally hypocritical or totally illogical to make a public statement championing the civil rights and liberties of Northern Protestants in the context of possible constitutional development on this island and then to block a similar development in relation to the civil rights and liberties in this part of the country.

I would hope, therefore, that this referendum will show a healthy maturity in the development of Church-State relations in Ireland. By issuing a statement focussing on the social implications of the proposed change, the bishops have left themselves open to critical scrutiny. Lest I be misunderstood on this — or that it be inferred that I somehow question the bishops' right to speak out, or criticise them for doing so — far from it. I would be both surprised and disappointed if the Catholic Hierarchy did not feel the need and responsibility to speak out on this issue, on which they have a clear interest. When they move, however, from theological or doctrinal arguments and the authoritive view as bishops of Catholic teaching in this area to their assessment of the social implications, then they are just as fallible as the rest of us. They are just as open to critical scrutiny. We have a responsibility as legislators to look at what they have said, to consider seriously their views, but also to have the courage and the guts to see the difference and to be willing to pay the price of standing up and saying: "we do not agree with the assessment of the social implications. We do not agree with what has been said in the area of the impact on social change and on sociological considerations here in Ireland." Also any scrutiny of the bishops' statement should not only have regard for the matters contained in the statement but should also have regard for the matters which were omitted from the statement. Having read carefully the full text, of the bishops' statement, certainly as reproduced inThe Irish Times, I felt it was very partial on the social implications. It did not address the issues that are central to our approach to this problem. There appeared to be a lack of willingness to examine the situation which real people find themselves in, who are separated, who are parties to a breakdown of marriage, who are living in stable second relationships. They are somehow written off once sympathy is expressed. Tea and sympathy is out the window on this. There must be an attempt to address the problems.

In so far as it is possible to offer advice to the Hierarchy who have issued the considered statement, my unsolicited comment to the bishops would be that it may have been unwise in the statement they have issued to blur, as their statement does, the effect of the distinction between the legal provisions relating to marriage and the religious and cultural environment which conditions the attitude of individuals to the institution of marriage. For example, one phrase in the bishops' statement was a conclusion and I quote: "Marriage as a life-long union becomes legally obsolete, once you have divorce". That is a very dangerous blurring of different concepts. It does not become legally obsolete, far from it. Marriage continues to be a life-long commitment. All the supports and framework are there for that. What it does is provide a facility where the human relationship has totally and irretrievably broken down, of having an opportunity to remarry. This blurring at the edges is a gamble on the part of the Hierarchy. But what if, as I sincerely hope will be the case, this referendum is carried? Where then is the authority of the bishops? Have they not themselves raised a very real doubt about the institution of marriage? We must all live afterwards with statements made and things said in the course of this debate. It would be a more measured and considered approach for the Catholic Church to emphasise the theological and doctrinal aspects of the Church's teaching, which of course does not change, to reinforce it in the context of this debate, but not to suggest that marriage as a life-long institution becomes legally obsolete.

The next issue I want to consider and which has been the subject of considerable debate is the effect of the constitutional referendum on the existing position, particularly the existing position of partners to a marriage — the dependent spouse and children of a marriage. A very clever campaign is underway to raise fears and apprehensions of what the removal of the ban on divorce would mean. It is a clever campaign because it scores debating points.

I am going to take a moment to score a few debating points, by pointing out the serious reasons there are for worry under the present Constitution. Under the present Constitution there is enormous cause for all of us to worry. I am going to set out four propositions which are legally accurate. I do not think any lawyer would contradict me on them. Yet if you take them in isolation and look at them they would cause many worries to people. If you take them cumulatively people would say that is terrible and how could that be? What kind of Constitution have we? What kind of laws have we? Let me set out these four propositions.

It is true under the present Constitution that some families have no constitutional protection at all, including Catholics who remarry after a Catholic annulment. You could go out on the doorsteps and really worry people with that one. Quite a few families have no constitutional protection and have no possibility of getting constitutional protection. That is the first proposition.

Second, some fathers have no constitutional right to the care and protection of their children, either under the family law provisions or under the personal rights provisions. So some Irish fathers have no constitutional right in relation to their children. That is terrible. You could go out on doorsteps and worry people with that as well. That is my second proposition.

Third, children are not all equal under the Constitution. Some are more equal than others. It is true to say that all children have guaranteed rights under the Constitution. There are a number of recent judgments of the Supreme Court, including a case in 1980, of“G” v. the Adoption Board, which identified the constitutional rights of children. The most recent judgment of the Supreme Court on this issue, in the context of an adoption case, made it clear that although all children have rights under the Constitution, children of a valid subsisting marriage under Article 41 have additional rights, in addition to those rights that all children have under the Constitution.

My fourth proposition: some mothers of children have the protection of family rights under the Constitution; others only have personal rights in relation to their children. As I will run through those four again until we see what a shocking and appalling state we are in. We should all be terrified and the cause for worry is unbelievable. Why are the Catholic Church and Senator Hanafin and everybody else not bouncing up and down about this? Really it is just terrible. I will go through the four points again. It is all true. Some families have no constitutional protection at all. These include Catholic families who remarry in the Catholic Church after an annulment; not an iota of constitutional protection have they one way or the other. Some fathers have no constitutional right towards their children; none at all. They cannot invoke the Constitution in relation to their children. Children are not all equal. It is not the case as in 1916 when we pledged ourselves to cherish all the children equally, not at all. Some children have more rights under the Constitution than others. Fourthly, we distinguish between mothers. Some mothers have constitutional, inalienable and imprescriptible rights to the care and protection of their children and others such as the unmarried mother, only have personal rights under Article 40.3.

The reason I have taken some time to state all of that — I do not think there is a lawyer who could take issue with those statements — is that we have to be sensible about this whole issue. We have a very elaborate Constitution which sets out very detailed provisions which have been interpreted by the Judiciary down through the years. The ordinary man and woman in the street do not look at that every day of the week. I think it is a very questionable approach to raise debating scares on such an important subject. It is very easy to do it. I could go out and raise lots of debating scares about the present situation. I could start bringing home to people what terrible injustice there is under our Constitution, but the reality is that we live our lives in the social realities that face us and among the social pressures and tensions.

What we really want to do is get away from too much preoccupation with whether a family would have constitutional protection or not. Lots of families do not; and it depends on circumstances whether people will have consitutional rights or not. There is a very uneven distribution of those. The concept of the family is extremely narrow under the Constitution. Indeed, it is possible that Ireland is in breach of the European Convention for the protection of human rights and fundamental freedoms because of the very narrow concept of what constitutes a family under the Constitution and the denial of family rights to families who are not based on a valid, subsisting marriage.

That is my first response to Senator Hanafin. He said — and he was right there — that all of us had, and I quote him "underestimated the nature and scope of the family". We probably have underestimted the nature and scope of the various concepts of family, some under the Constitution and others not under the Constitution, and some having constitutional rights, some having certain sorts of constitutional rights and not others, and so on.

Senator Hanafin went on to say that he would find "the denuding of any of these rights offensive". That is a wonderful term. I took it down because it struck me as being very poetic. I find the denuding at present fairly offensive, I have to say. I find the distinctions drawn at the moment less than totally acceptable to my approach, which would be very much to start with the unit of the family: of parents and their children or, indeed, a single parent with children, if that happens to be the family unit. I would simply work out from there and have the necessary supports for that family. When we come then to the issues that have arisen — I am not trying in any way to suggest that they are not both of importance and issues that must be teased out in the debate in this House — and look at the statutory rights or the economic protections, we have to do it in the proper context. We have to be aware, as has already been emphasised in this House, that many of the rights that have been talked about are legislative rights — rights created by statute; by the Succession Act, 1965, by a number of Acts in the mid-seventies; the Family Home Protection Act; Family Law (Maintenance of Spouses and Children) Act 1976; the Family Law (Protection of Spouses and Children) Act, 1981, and so on. These are important measures. They reflect a concern for improving the protection and supports of marriage. I would like to join with those who feel we have not gone far enough in that. I want to see more legislation in that area and more supports and protection. I want to see both more access to remedies and more responsive, useful and relevant remedies for people who are caught up in problems of marriage breakdown.

It is really when we relate this framework of rights to the implications of the constitutional amendment that it is seen in context. The Minister, in her speech this morning, spent considerable time in answering some of the worries and problems that have been raised. I am glad she did that, but I would agree with Senator Higgins that it is going to require more than a speech in this House. I believe the Government must, as a matter of urgency, set out extremely clearly the questions and answers in relation to the worries that have arisen. It is important that people are helped in coping with the kind of debating points that are flying around the place at the moment. They are worrying. They are having an impact on the debate. The public debate is definitely influenced by emphasis on these worries. Therefore, they must be met and addressed. At least part of the approach must be to show that many of the real problems exist at the moment, only the context is worse because there is no possibility of the parties legally remarrying if the marital relationship has irretrievably broken down.

I am sure that women who have been separated for a number of years, and who were financially dependent on their husbands, must be laughing cynically at all the sudden public attention being paid to the areas of concern in the context of this debate. They have been living with the reality of the lack of protection for a long number of years and nobody gave a damn. There is a certain hypocrisy and, indeed distortion in arguing most of these issues as following as a consequence of divorce legislation. They are not the consequence of divorce. They are here with us now. We are coping extremely badly. We have people who are battered and bruised under the system because they lack adequate protection or maintenance because they may have been cut off or because they do not know what their rights are. One of the real problems at the moment — particularly for a woman who is financially dependent — is to know what possible rights she may have. Even there, we do not help by having such difficult access to legal aid. It is virtually impossible for somebody, unless they are below the poverty line, to be able to have access to advice from the law centres. We have all the problems which have been identified at the moment.

That being said — and I am going to be relatively brief on this because it is something we will probably discuss in considerable detail on Committee Stage — the issue of succession rights has given rise to a great deal of public debate. The Minister set out the position fairly fully in her speech this morning. If she wants support and confirmation I would very much agree with the analysis in her speech of the effect of the constitutional amendment. It will not affect the constitutional protection of the children of the "first family", as it is being called. The constitutional and statutory rights of the children of that family will remain unaffected.

Senator Hanafin queried this and pointed out that if there are children of the second relationship they will be affected. I am not quite sure whether he was expressing a view that those children should not have any succesion rights. If so, he will be forced to oppose the Status of Children Bill which is coming before the Seanad. Yet I seem to remember that Senator Hanafin welcomed the removal of any stigma or disadvantage to children born out of wedlock. He cannot have it both ways. If he is going to remove any discrimination against children born out of wedlock he must accept that those children will have the same succession rights as other children; and so will the children of a second marriage relationship, if and when this divorce referendum goes through. That would be in a context where the parties could marry and there would then be children of what is called a "second marriage".

We must not be too narrow or artificial in the way we look at this. We must recognise that for a long number of years we have had children who have been legally and constitutionally disadvantaged. It took a long time for us to get excited about it. After we have dealt with this measure, we are about to consider and debate a Bill which will redress the balance and start giving children the rights and equality of treatment which they should have had since the foundation of the State.

In relation to the position of the spouse, the model that is used is the model of the husband as the breadwinner, the wife totally dependent, a large number of children and the wife is left with the children while he makes off and she loses everything. That model is already familiar to us in the context of the deserted wife, or the wife who is not able to avail of social welfare but is obtaining maintenance from her husband and who is constantly back before the courts to enforce it because her husband has suddenly become unemployed or whatever the circumstances may be. She may be forced to have constant recourse to the family courts which a significant number of dependent spouses are already enduring. They are already enduring great financial insecurity and lack of protection.

The recommendations of the Committee on Marriage Breakdown were based on a recognition of the problems in the existing system. There were recommendations in relation to the kinds of orders that could be made in the context of succession rights. We need reform in this area at present, even if there was no move to introduce divorce. Therefore, it seems to me to be unreal to load the divorce debate with all these problems as if none of them, or no aspect of them, existed as it is.

Let us take a slightly different issue which is relevant to the overall situation. At present if a deserted wife in receipt of deserted wife's benefit or deserted wife's allowance, or a widow in receipt of contributory pension or non-contributory pension, cohabits she loses her entitlement straight away. Cohabiting under the social welfare code seems to be interpreted as having a man living in the house. There is no requirement expressed in the legislation that there be financial dependency. Most elected representatives would be aware of instances where the benefit had been cut off because of cohabitation.

Even alleged cohabitation.

Even alleged cohabitation. The woman is then without any benefit. She has to rely on supplementary welfare. If that woman had the possibility of remarriage in that context she might be a great deal better off. She cannot marry and yet her cohabitation has cut off her deserted wife's allowance, contributory pension, or whatever. As we look at each of these problems, we can see they are problems which exist at the moment or variations of them do. The Government have a very clear responsibility to take each point and consider it fully. The Minister has dealt with a number of them in her speech this morning. The Government must clearly set them out and also indicate the problems in the existing situation. I was glad to see that the Minister accepted that the Government can and should do more in this area. It is clear from the statement accompanying the Bill that that is the intention.

Before concluding I want to refer to the wording of this amendment. I will be brief, because it is something we can discuss much more fully on Committee Stage. I have already expressed publicly the view — and I wish to do so here unequivocally in this House — that this is an extremely restrictive provision. It is the most restrictive proposal in relation to divorce that I know of. I do not claim to know the position in every country in the world but I have seen the legislation of a fair number. The Committee on Marriage Breakdown has summarised the divorce law in a significant number of countries. This constitutional provision, together with the clear intention of the Government to require five years' separation before a person can apply for a divorce, is extremely restrictive. I am also unhappy with the wording of part of it. I hope to develop the points I have on that in the context of tabling amendments for consideration at Committee Stage.

The concept of a marriage having "failed" is one which is not familiar to judges in the common law systems that we would have regard to. It is certainly not a concept which our judges would use under existing marriage law. Therefore, it introduces a new concept, in effect. That concerns me because judges do take extremely seriously what is in the Constitution. Let nobody be under any illusion about that. Whatever about interpreting legislation, the wording we put into the Constitution will be taken enormously seriously by our Judiciary. They will be very careful, cautious and conservative in interpreting the wording. Far from thinking that this provision is the most liberal, way-out and advanced provision, I would suggest that it is so restrictive that relatively few couples will be able to avail of the facility of divorce. Anybody who has any doubts on that can feel reassured by looking at the precise wording.

First of all, the court in question would have to have regard to the whole context of Article 41, the context of protection of marriage, the context of recognising the family as the basic unit of society. The Judiciary would have to establish the different preconditions set out. They would have to establish that a marriage had failed. They would have to then establish that that failure had continued for a period of or periods amounting to at least five years. If, for example, a couple had separated for a trial period, presumably the court would not consider that that was a failure. It would be difficult to say that something had failed if one was still making efforts to make it succeed. Even if the trial period of separation did not work, so that the parties came back briefly together and then decided it was not going to work, they might have to start again. They would probably have to start again in computing the failure. It is quite possible that a couple could be separated for five years, but would not have had their marriage "fail" for five years. It could be that one would need seven, eight, nine or ten years before one would meet the constitutional requirement of establishing that the marriage had failed.

The provisions in paragraph (iii) where it states that there is no reasonable possibility of reconciliation between the parties to the marriage is one on which I would suggest that the Judiciary would be likely to require evidence. In other words, anybody seeking to satisfy a court that the constitutional pre-conditions had been met would have to satisfy the court through evidence that there was no reasonable possibility of reconciliation. This might require that the parties had tried for reconciliation and could produce some evidence of that and that positive efforts had been made as opposed to just throwing in the towel and living apart. These are extremely restrictive, cumulative conditions.

There is the further provision that any other condition prescribed by law had been complied with. We have been told in the public statement issued that this would require separation for five years. We will discuss that in more detail on Committee Stage.

The court may only grant a dissolution if it is satisfied that adequate and proper provision having regard to circumstances will be made for any dependent spouse, child of or any child who is dependent on either spouse. I would submit that "will be made" does not mean will be made on the day one goes into court, but without any guarantee of provision for the future. That "will be made" requires that a scheme of future provision for the spouse and child will be assured. Therefore, I would draw the conclusion that the dependent spouse and children of a marriage — of what has been characterised as the first family — would be much more securely protected than the dependent spouse and children of a marriage that has broken down are at the moment. They do not have a court, two years after the matter has already been before the court, monitoring the way in which arrangements are working out. They do not have a constitutional requirement for that kind of safeguard.

It may be this strictness that has led to the recent question — this is the most awful question of all — posed by Deputy Haughey and by others "can we afford it"? Can we afford what? Can we afford to let men not face up to their responsibilities? It is what is happening at the moment. Where we do not have the provision for remarriage it is men who are cheating on their first wives or else cheating on their second partners and who are not required to face up to the consequences of entering into a second stable relationship and having children of that relationship.

If we are concerned about the values in our society we cannot afford not to address these issues. Those who are suffering at present under the system which does not require that proper provision be made are precisely the dependent wife and mother in many situations. I find it a little difficult to have patience with those who purport to be championing the rights of women in this area. One has to go by a track record. I have been involved in one way or another fighting for women's rights for quite a long time and I know who is involved in that. I know who I am going to meet. I am probably going to meet them this evening at the ISPCC. I am going to meet them next week at a forum on women's rights. I know who they are and they are all in favour of this amendment. Without exception, those I have spoken to are strongly advocating greater rights and protection for women. I am suspicious when I hear of the attempts being made to suggest that it is women who will suffer.

I welcome the attention being paid in the context of this debate to the lack of support to marriage itself and to marriage when it has broken down: to the economic, social, financial, legal and other factors involved in a separation. All those problems should have been addressed years ago. They are a shame to us that we have not been examining them. They are not either the product of or the consequence of divorce. They are all there prior to the divorce issue.

I indicated that there is an enormous responsibility on the Government in the month remaining, after this House has passed this Bill, before the referendum on 26 June. This is the most important issue which the country has faced since the Constitution was adopted. I would go so far as to say that. It is a "landmark" time for this country. It will be an enormous setback if the referendum is not carried. It will mean that we are prepared to condemn a significant number of men, women and children to continue to live in legal and social limbo without adequate rights and protection and without the basic right to legitimise their relationship with each other. We will have decided to turn a blind eye on the social realities in our society and to opt for the continuation of devious, underhand and, ultimately, hypocritical solutions to one of the most basic social problems our society has encountered. Most of all, once the Government have embarked upon a proposal to remove the constitutional prohibition on divorce they have asked Irish society to face up to the urgent social issue that we have, and to do so in the context of opening up as a society, becoming more pluralist and accommodating difference. That is the issue in 1986. Our society has been asked to open up and to reflect the differing views which can be accommodated within that society.

June 26 will be an extremely important date for this young, growing and vibrant society. Those of us who perceive the appalling consequences of a "No" vote have a duty to campaign actively for the next month in order to ensure that the issues are put fairly and honestly before the people. Of all the social questions that have ever been raised in this country this is not one on which anyone can remain neutral. The word "neutral" is a very interesting one. I have listened very carefully to the way people who have described themselves as being neutral have responded to this debate and if that is "neutral" I would hate to see what hostility was!

It is all depressingly familiar — the Family Planning Bill, the Pro-Life Amendment Bill. Many of the same arguments are trotted out. The Catholic Church has an inordinate interest in what happens in bedrooms when the rest of the world, including the members of hierarchies in other countries, have moved on to address the real issues like nuclear war, famine and so on and yet we have to move out of the front door and look at the rest of the world.

I should like to refer to the contribution made by Senator Eoin Ryan earlier on, and that of Senator Hanafin. In his contribution Senator Ryan said that he was depressed because of the lack of leadership shown by the Government and the implication in his statement was that the Government succumbs to a pressure group. I was amazed at that because the record to date of Senator Hanafin's party is that there is hardly a pressure group in the country they have not succumbed to in the last number of years. The only pressure group they are prepared to withstand is where there is any sign of a bishop's mitre; then that pressure group will be resisted on behalf of the bishops. For all other groups it is open season. I witnessed in this House last week a procession of Fianna Fáil Deputies and Senators paying homage to the leaders of the GAA in a corner of the bar.

Leaders of whom?

The GAA. I am quite definite that if the bishops had a theological view about VAT on hurleys, he would not have moved the particular amendment on removing it.

Senator Hanafin referred to the fact that because the children of the second family could have a share in the estate the children of the first family were somewhat hard done by. This is the very same Senator who was against family planning. of course, if he allowed family planning there might not be four children, there might conceivably be one, so the one would get the lot if one is to follow the logic of what he was saying. It seems to me——

The man above.

——even though one would get the impression from what has been said here that the man above is a card carrying member of Fianna Fáil, I still have doubts.

I have trouble enough with the Senator.

It may be true but I have doubts. There is a phrase with which the House will be familiar and it is "that is between husband and wife". You will have heard that phrase said usually in the context of a row. That particular phrase is a smokescreen for terror, for beatings, for abuse and that is the reason it is so important that this amendment is carried because it holds within it the possibility of freedom for thousands of people. That is extremely important.

There are barring orders against people who abuse in most cases women but they are ineffective and we know they are ineffective. We pretend, despite the fact that a marriage is dead, that in some way it has not happened. We ignore it. The stance of the Fianna Fáil Party in this issue is nothing short of disgraceful. When I look at the Republican Party, I remember that many years ago people of that persuasion were prepared to face the worst penalty the Church could impose which was excommunication for standing by the Republic. Where are they today? This inordinate fear they have today of crossing the Church removes all judgment from Fianna Fáil. They cannot make up their minds. If it is a tactical device that you have one hardliner, a couple of liberals and a couple of right-wingers so at the end of the day you can sweep up all the votes or be representative of the people, that is not a tactic which is going to work. People are far too educated nowadays and they are far too aware. In many cases the Catholics of this country who are going to decide the issue because they constitute the majority, are ahead of their bishops and they are certainly ahead of Fianna Fáil, which is not difficult on these issues. I subjected myself to a television programme calledMy Ireland, by Mr. C. J. Haughey.

Did you watch it?

Indeed, I did.

I suggest that the Senators leave him alone. I have trouble enough.

I want to talk about my Ireland because I grew up in an Ireland in which if you did not drive a 20 ton truck or did not do shift work, you could not eat a steak on Friday without committing a sin. I grew up in an Ireland that wanted us to believe that unbaptised children were consigned to Limbo, unfit to see the face of God. The strange thing about that is that you do not hear anything more about it. Have there been changes? Did the bishops decide in Maynooth that unbaptised children can see God without any great trouble? They never told us. What happened? What happened is that the people moved on and the church got into first gear and headed off after them to make sure that they would not lose their flock. In this particular issue they are in grave danger of doing precisely the same thing.

In case anybody gets the impression that I am anti the Catholic Church, let me say this: when the bishops or the Hierarchy, acting collectively, decide to involve themselves in political issues, then I will answer them as a politician because they deserve to be answered as politicians. Instructing your flock is one thing. Utilising thousands of public meetings for the next five Sundays is something else again but every priest in the country, on instructions, is going to propound a particular point of view little of which has to do with theology but an awful lot with scaremongering. Open the floodgates. If there is nothing behind the floodgate, there is no problem. If you open a floodgate on a dry day, nothing happens. I am for opening floodgates if there are people suffering. If I can use a medical analogy, we can fix cracks on limbs but we cannot bring the dead back to life. With all the modern technology one sees in hospitals when that line on the monitor stops that person is dead and we need to take the usual steps after that.

But in this case when marriage dies — and they do not all die traumatically — people simply do not want to live together any more. There may be no trauma, no beatings, the marriage just dies and we refuse to accept that. Why do we refuse to accept this? Is it because intellectually we do not accept it or is it because spiritually we are told it is morally wrong and it is against the faith of the Church? That is fine. I do not have a problem with that. This does not apply to Catholics. Every believing Catholic in the country will have no use for this legislation, no problem, so what is the panic? The panic is that there is a demand and there is a need and people will use it to escape bad marriages and quite rightly in my opinion.

I said a few moments ago that the phrase "it is between husband and wife" is the most deadly phrase in the country. I have seen terror reigning for years, separation and barring orders included. There seems to be a Divine right to go back and beat and intimidate and terrify. We can end that if we have the courage. I am far more impressed by a woman in a fifth storey flat in that position and her views carry far more weight than a bishop in a palace and I make no apologies for that. As far as I am concerned, there is not a bishop in this country who could sway me to deny those people their entitlement, their civil right to decide that they do not want to live together any more.

The impression has been created that the Protestant Churches — I think it was Senator Robinson referred to this — were devoid of standards and that they advocate divorce. Of course, this is a travesty of their position. I regret, as a Catholic, that so often I find myself at odds with the leaders of my own Church for the best possible reasons. I refused to accept the concept of Limbo when I was about 9 years old. I do not know whether that meant that I was intellectually well developed at 9 years of age or had a little more commonsense than most or refused to accept the old dark age mumbo-jumbo. I could not accept that a God who was compassionate and loving could bar a child because somebody forgot to put water on its head. That assaulted my senses. If a member of the Roman Curia or the most distinguished theologian tried to make that case, I could not accept it. I believe now that the Church has recognised that that is one of the things that does not stand up.

There is a belief that Ireland is somewhere special. Either we are spineless or we are special because we seem to need legislation to buttress our supposed deeply held religious convictions. If they are deeply held it does not matter what laws are passed. Let me quote the Jesuits —"Give me the child and I will answer for the man." If the convictions are not deeply held then the Church have done one hell of a bad job if we are such a spineless bunch of Catholics as suddenly to throw overboard all the teaching and all the preaching and all the institutions we have been part of from the day we were born. There has been no suggestion that Catholics in Armagh, Newry or Belfast are somewhat less or more Catholic than we are in the South. There does not seem to be any problem with Catholics in Britain, France, Spain, Greece or in any other country where divorce legislation exists. The Catholic Church cohabits with no difficulty in these countries. What is the fuss about here? Why can we not give that freedom to people who need it?

I was present in this House when we debated the question of capital punishment and the substitution of 40 years imprisonment for various crimes. People who voice their opinion that consigning someone to prison for 40 years is inhuman seem to have no problem in consigning people to a living hell for, perhaps, more than 40 years. Unless the people vote "Yes" in the referendum and the Oireachtas enacts laws that recognise the reality, people will be condemned to live for many years in absolute abject misery. There is no doubt about that.

The scare tactics used, by some members of the anti-divorce group especially, have to do with the fact that people will not be provided for. There has been a clear Government commitment which I hope in the next few days will be made much clearer, that amending legislation is necessary to ensure that people who get divorced and are not in a position to be maintained should be provided for. That, obviously, means a single person's allowance. Let nobody be in any doubt, regardless of the propaganda, these people will be no worse off and I am talking mainly about deserted wives. I understand why it is so easy to play on a deserted wife's fears because in many cases the book containing the letters "DW" is probably the only constant source of income she has ever had and she is not going to surrender that easily. It angers me greatly to hear people saying at public meetings and from pulpits that she will lose that. That is a lie and that lie will be nailed by the Government. It has been nailed and will continue to be nailed.

Every wife is at risk, they say. This is idiotic stupid and insulting. One could only get away with saying something like that in Ireland. If one said that in any other country he would be locked up as if he was half mad.

This is possibly among the most restrictive pieces of legislation ever to be brought in. What does it require to get a divorce in this country? First, that the marriage has failed, gone dead, that the failure of the marriage has continued for a period of five years, that there is no reasonable possibility of the parties being reconciled and that adequate and proper provision will be made for any dependent spouse of the marriage and for any child dependent upon the parties to the marriage. If the judge is not satisfied about any one or more of these matters, he will not be allowed to grant the divorce. That is reasonable and fair and it is compassionate and just.

I had a unique opportunity at one time of participating in a diocesan tribunal which decided that a marriage involving a close relative of mine did not exist. It was the greatest charade I ever got involved in in my life. The net effect of it was that the nullity decree was granted and in one swift movement the children were declared illegitimate. One is then in the position of having to legally adopt one's own children. At the moment people find it easy to live with this situation but I do not.

The Church is far more lenient in releasing people from commitments, for instance, in the laicisation of priests and nuns. It is far more compassionate in that area than it would appear to be to the ordinary man and woman who find themselves in a union that, for them, no longer holds any hope of happiness or even tranquillity. Although the essence of this legislation is the right to remarry, my experience from talking to people in those situations is that the first requirement is peace. The idea of closing one's hall door and being free of fear or bullying. Obviously, the right to remarry is a very important one. The old cliché still stands that you only live once. The pursuit of happiness is not something that is debarred. It is still a legitimate and worthwhile pursuit.

The Opposition have avoided this issue. They want to be all things to all men. They do not want to take a position. There is a difference between the individuals in a party and the corporate view or party policy of that party. I am a member of a small party, the oldest party in the State and for many years a battered party, but I am proud to be a member of it because for well over a decade, when it was extremely unpopular in 1969 when we were supposed to be hanging parish priests in west Cork, my party adopted a policy on divorce and has never deviated from it. Small as we are, those who have deviated have been thrown out because we believed in it, long before it was popular with any party. I am talking about parties. There are very honourable individual exceptions. In something so fundamental as this referendum political parties have an obligation to have a view, not to try to be a catch-all but to lead.

Fianna Fáil have flumped this test. It would probably be wise now if they did not bother with the bracketed "(Republican Party)" because there is no way they can now claim to represent the Republic as a party.

I have great faith in the people of this country. They are compassionate and they have demonstrated that, for example, inLive Aid when, per capita, as badly off as we are at the moment, they contributed more than any other country. They would have the same compassion for people who are in the unenviable situation of being unhappily married or being in a marriage that has broken down or irretrievably broken down and which no amount of putty or tribunals can put back together again. The people will have have the compassion and the honesty to vote for the constitutional amendment and allow these Houses to introduce a humane law which recognises reality.

The final remarks I want to make are directed to the people in the anti-divorce lobby. They have an obligation to examine and question all of the implications of this proposal. That does not give them the right to disseminate misinformation, outright lies, in an attempt to sway people's votes in this matter. There is no danger whatsoever of people who are now in receipt of deserted wife's allowance suddenly finding themselves divorced without any means of support. That will not happen. The Government have already said that and we will make it crystal clear in the days and weeks of this campaign that the allegation that is made in the media is a lie and will not be substantiated.

It is wrong to instil fear in people in order to get a result. Our job is to inform, not to instil fear. We all have a responsibility in this debate. Fianna Fáil take all positions. We do not want to mislead people but to inform them, so that, having been given the facts, as we all see them, and the best possible information, they can evaluate for themselves the necessity for this and make their own decision. I hope that the debate will not be sullied by anybody, including the Churches, by transmitting misinformation in respect of what will happen to people's entitlements and allowances when this legislation is enacted. I am absolutely confident that the opportunity to confer on people the right of a new life will be taken by the people.

The purpose of the Bill is to enable a referendum to be held so that the people will have an opportunity of deciding whether they wish to amend the Constitution to enable divorce legislation to be enacted.

The debate on marriage breakdown and divorce has gone on now for a long time and culminated in the setting up of the Oireachtas Joint Committee on Marriage Breakdown in July, 1983. I had the pleasure of serving on that committee which reported to the Oireachtas a little over a year ago. During the course of their deliberations, the committee considered those factors which contributed to the breakdown of marriage and made many recommendations as to how the problem could be tackled.

I say this because, listening to the debate, one would imagine that the committee spent the whole 20 months discussing divorce. That is not so as can be seen from the report itself. The committee discussed the importance of being prepared for marriage, education, counselling, the age of marriage, the nullity of marriage, judicial separation, barring orders, family courts,et cetera and made recommendations under all those headings. The arguments for and against divorce were condensed from 700 written submissions and oral evidence heard from 24 different groups. The majority view of the committee was that a referendum should be held but that does not necessarily mean that the majority of the committee were in favour of divorce.

Senator Robinson, in the course of winding up her contribution to this debate, mentioned the neutral stance taken by certain Senators. My upbringing, my education and my respect for certain values would dictate to me that I should oppose this Bill. The Senator can rest assured that this is one issue I am not neutral on. I hope during the course of my short contribution to explain to the House why I will not be neutral on this particular issue.

Our purpose here is to decide whether or not we should propose to the people of Ireland a fundamental change in the law of marriage. It is useful in the beginning to remind ourselves why the State involves itself with marriage at all, given that the Constitution recognises the family as the fundamental unit of society anterior to all positive law.

The primary responsibility of the State is to facilitate those who wish to be married, to guarantee their right to be married and to create in the State the social and economic climate which will support marriage and family life. The involvement of the State in legislating for marriage is, therefore, for the sole purpose of ratifying a marriage contract freely entered into and thereafter in the role of an honest broker protecting the rights of the partners, of their children and of the family unit as a whole. Since the family unit is anterior to positive law, the State has no rights of control over the marriage such as would alter its purposes or meaning or change the terms of the marriage contract in any way, let alone terminate the contract.

Before we can begin to form marriage law, we need, therefore, to bear in mind its purpose and its limited scope. As it stands at present, the State has a constitutional obligation not only to prohibit divorce but to defend and support the family. This obligation may be fulfilled in various ways. One of the most important of these is to ensure, before marriage takes place at all, that the parties are adequately prepared.

In most societies it has been accepted for centuries as axiomatic that anyone who enters a trade or profession should undergo a period of training and preparation. This is important not only because it enables the person in question to avoid doing harm to himself, herself or others, but also on the positive side because it helps the person to reach his or her potential and derive personal satisfaction from his or her work. Yet, in the case of marriage, which is a highly significant occupation both from a personal point of view and in terms of its contribution to society, the State requires no formal preparation of any kind. Persons wishing to enter marriage with all the responsibility it entails, including the responsibility of educating and caring for the next generation of citizens, are offered no formal training of any kind by the State. In so far as they get any help in this area it is from the Churches.

One important factor in the stability of a marriage is the level of maturity involved in the decision to marry. Our present law allows people to marry at an age when they are little more than children and they can be off to the south of Spain on their honeymoon within a week of making that decision. Once people are married, the law of the State should be supportive of their union in view of the importance to society of the family unit. While there is a general acceptance in social policy of the special place of the family, there are many structures and factors within Irish society which mitigate against the family.

Recent budgets have increased allowances for individuals but have made no improvement in the position of families in respect of dependent children or their dependent relatives. In fact, the only household item on which excise duty has been reduced in recent years is the bottle of whiskey. The housewife continues to pay increasing amounts for meat, vegetables and dairy products because prices are being kept artifically high through selling into intervention instead of developing a more dynamic and imaginative marketing strategy towards countries outside the European Community. Indeed, planning has also been poor.

The response to a massive increase in the population of Dublin has been to place new family units miles outside the city, often without many of the normal facilities associated with modern civilised society such as shops and adequate transport. The penal system punishes the offender and his family and places an undeniable strain on marriage in so far as it rules out the possibility of any real personal relationship between the family members and, in particular, the partners themselves. Finally, when a marriage does run into difficulties, the State offers no support system, no reconciliation facilities. Any help families receive in this area is again from voluntary agencies and from the churches.

We are promised that the Government will, following a referendum on divorce, provide for marriage preparation, set a higher minimum legal age for marriage and provide for a proper reconciliation procedure for couples in difficulty as well as other positive changes in marriage law. But these are only changes in the law. They do not require a referendum and they can be introduced and achieved without the introduction of divorce. At present, such legal changes are being presented by the Minister for Justice and some of his Cabinet colleagues almost as if they were part of the Article on which the people are to be asked to vote in a referendum. Let this be clear once and for all: there is only one question at issue in this proposed referendum. That is whether or not the Constitution should be changed in order to allow for divorce. It is to this question I wish to turn my attention.

Many Members will recognise George Orwell's description of how it is possible to convince oneself of anything by being careful to accept as reality only that which is in harmony with what one wants to believe. The phenomenon of double-think goes hand in hand with the development of newspeak, the redefinition of words in order to strip them of any unacceptable significance and to make them mean what you want them to mean. To suggest, even for a moment, that marriage as generally understood in the western world could co-exist with legalised divorce is to indulge in double-think because marriage means the lifelong and exclusive self-giving of one man and one woman. When divorce is introduced a society is, in fact, re-defining its legal understanding of marriage. It is simply not true that a divorce law would affect only the small minority of marriages which break down irretrievably, leaving the happy and successful marriages untouched. This is what the Minister for Justice would have us believe.

Divorce introduces a radical change into society's legal understanding of marriage, abolishing the concept of indissolubility of marriage. The Minister can talk all he likes about the law of divorce applying only to marriages which have failed for five years, but I would ask him who ultimately defines failure if one partner in the marriage has had enough and decides to leave? I would challenge the Minister in his own turn to point out to me and to the House one marriage, any marriage at all, to which this proposed divorce law would not apply, if one partner left and refused to return.

Irrespective of the meaning of the commitment previously made, marriage, all marriages, would become in legal principle a temporary union and this is the case regardless of the wishes of the parties involved. What the Government are proposing is a situation in which no citizen of this State could enter into a lifelong marriage contract guaranteed by the law of the land.

It is sometimes said that one cannot legislate people into morality. This is true in the case of private morality or virtue, but not in the case of public morality. Every civilised State, every civilised society regulates the behaviour of its citizens in a wide variety of ways. Laws of all kinds are created for the common good. When we come to the question of marriage we must decide whether it is in an area of public or private morality. If private, the State should have nothing at all to do with it. If public, then the State must regulate it for the common good. One thing is clear, it cannot be public when it suits us and private when it does not. Yet this is precisely the philosophy of no fault divorce. It proclaims that marriage, which was a matter of public and legal significance on entry, becomes on exit a private matter.

Some of the proponents of divorce have argued that in spite of everything marriages do breakdown. People do enter into second unions. Partners are deserted and left with sole responsibility for the children. They point out that because of all this the State must legalise divorce. It would surely be poor law to suggest that if something which we all accept as undesirable is happening, it should therefore, be legalised so that it can happen respectably.

Let us remember that the role of the State in relation to the family is a protective role and not a defining one. Yes, marriages do break down and the State recognises this fact by making provision in the law for the maintenance of spouses and children, the legal separation of married people, the care and upbringing of children and the protection of the family home. This is all with a view to fulfilling the constitutional obligation to protect the rights of the marriage partners and their children, while at the same time recognising the permanent commitment which the partners have made. It is an expression of this commitment that even when a marriage is broken down a separated person and dependent children are maintained while the other partner continues to have property and income and the social and material well-being of the children is taken care of.

Neither is it true to say that divorce is necessary to enable a couple to separate when they can no longer abide living together. Divorce has more to do with remarriage than with separation. While the State can fulfil its obligations to the family and to its individual members in a breakdown situation, it has been clearly shown from experience in various countries that once the State accepts the principle of divorce, it cannot logically or practically speaking, fulfil its obligation to a family which in law has quite simply ceased to exist.

International studies have found that women and children are the casualties of divorce. Older wives and wives with young children have suffered the greatest hardship. In England when divorced wives go to court and seek a revision in the amount of maintenance orders to take account of inflation, their application is more likely to result in a decrease rather than an increase in the sum ordered to be paid to them. Likewise in the United States, if a couple divorce after 20 years of marriage, the wife is likely to experience a sharp drop in her living standards, despite provision for alimony, while the husbands' living standard often rises.

A highly qualified legal expert, an Irish-based one in fact, said while advocating divorce law in the past year that there is something to be said in favour of the restriction of maintenance on the basis that the development in society of a large number of maintenance drones is hardly an endearing prospect.

The proposals of the Government to introduce divorce in Ireland actually do reflect these trends. Since the Constitution does and will continue to recognise as the fundamental unit of society, the family as constituted by marriage, the Article which the Government want to insert into the Constitution providing for the dissolution of marriage will by definition, be providing at the same time, for the dissolution of the family. Accordingly, all the rights conferred by the Constitution on the family will be accorded to the new family as constituted by the second marriage, because this will be the only family which the Constitution will now recognise. This will have the effect of making it impossible for the State legally to uphold or enforce any of the rights of the original family. There will be an inherent contradiction within the terms of Article 41 of the Constitution. It should also be pointed out that a further contradiction will arise from the idea that the Constitution recognises the family and its rights as anterior to all positive law, because the family referred to now will be an artificial second unit created by positive law.

Among the rights of the original family affected by divorce legislation would be the rights of parents in respect of their children. In the event of remarriage of a woman with dependent children, her new husband would under the Constitution, have more rights or authority or jurisdiction over those children than their natural father, because the new family and its rights would be all that counted in the eyes of the law. This would be so, irrespective of which partner in the original marriage had walked out or sued for divorce or had been responsible for the original breakdown.

It would be possible of course for the State to come to the rescue in order to ensure that divorced wives and their children did not experience hardship or economic disadvantages. Such public subsidies were favoured by a 1974 report in England, but the idea was rejected because the Government of the day said the country could not afford it. I would ask: can we afford it either or can we introduce a law which will enable husbands to hand over to the State the financial burden of caring for their wives and children when they no longer want to do so?

Of course, there is more to the injustice of divorce than purely economic considerations. The pain and loneliness of separation and desertion is not taken away by divorce. It is made final and permanent. While for some husbands and wives there may appear to be a solution of a kind in remarriage, the same cannot be said for their children. For them divorce aggravates the problem of conflicting loyalties and puts an end to any hope of reconciliation between their parents. Remarriage places them in intimate relationships with strangers. There is overwhelming evidence that the relationship between step-parents and step-children after divorce is frequently plagued by problems involving conflicts of loyalty and authority, of scapegoating of children and of sexual tensions and abuse.

Many people of goodwill propose divorce as a solution to problems caused by marriage breakdown. They are, as I am, conscious of the pain and unhappiness of someone whose life has fallen apart at the seams and who appears to be left with nothing but responsibilities. Understandably, people must do something to help. I would ask you to remember two things: first, divorce cannot prevent marriage breakdown. It can offer the possibility of a second chance which carries with it no guarantees. In fact a very high proportion of second marriages break down. This is hardly surprising because those involved have already accepted the principle of marriage which is terminable by divorce. It must also be accepted that some second marriages are affected by the very same problems that caused the breakdown of the first.

Divorce is by no means the great solution even for those who remarry. Secondly, some people want to be free from their marriages. Their problems are worthy of our care and attention but there is no such thing as absolute freedom. There are other people and other rights to be considered also: the right of those who are married to remain married; the right of children to the integrity and security of their family — to mention the two most important.

In his address to the Dáil the Taoiseach, Dr. FitzGerald, argued, somewhat unconvincingly, that divorce would help to give greater stability to marriage. This is where the double think comes in. No society can seriously be expected to believe in stable marriage and at the same time make for itself laws which dissolve marriage. If a society ceases to believe in stable marriages its marriages will cease to be stable. Having mentioned the Taoiseach I can think of no better way to conclude my comments today than to add to them a few very worthwhile insights of the Taoiseach on the subject speaking to a gathering of law students a few years ago. He said at that time:

The arguments in favour of divorce are basically individualistic arguments, which assume that no one is affected by a divorce other than the couple in question and which frequently ignore the impact on the children which should be the primary consideration. Of course a counter argument is often made that it is better for children that a marriage should be terminated than that they should suffer the effects of living in a divided household. I doubt the validity of this argument because it is in reality an argument for legal separation which is, of course, already part of our law, rather than an argument in favour of divorce with the right to remarry.

While in some instances it is possible that the remarriage of a divorced partner with custody of the children, could be beneficial for the children the contrary can also be the case. I do not think that those who argue in favour of divorce give full weight to the interests of the children in the case they make. I doubt, moreover, if they give adequate weight to the need to protect the wife, who for biological and economic reasons is the more vulnerable partner, from a situation in which husbands can readily put aside their wife in favour of a younger woman.

The Taoiseach concluded with the interesting observation:

The arguments about divorce are also confused by virtue of the fact that those who favour it rarely explain why, while favouring divorce, they attach such importance to the institution of marriage as to insist that, having terminated one union, a partner or both partners must be permitted to go through the ceremony of marriage once again.

With the backing of such a worthy supporter I rest my case and ask the House to reject the proposals of the Government as being unworthy of the Irish people.

Could I have clarification as to what the Senator was quoting from?

The speech was made by the Taoiseach speaking to a group of law students some years ago but he also referred to that speech in the other House last Friday and quoted from it.

May I have the date when the speech was made to the law students?

I can supply that.

I listened with interest to Senator Hussey's comments and I was intrigued by his speech and, indeed, the body of knowledge which he brought forward in support of his argument. He stated in the course of his contribution that he was a member of the all-party committee on marriage breakdown. So he was, and while it may seem ungenerous of me to say so, I would put on record that that committee was not favoured with the benefit of his views on the number of occasions we might have wished to have had him present. That is a great pity because in the course of his contribution today he has views on the subject of marriage and marriage breakdown. I would have wished that he would have expanded and, indeed, expounded those views through his privileged membership of the committee.

I welcome this debate on the constitutional amendment. One is tempted to say "At long last" because those of us who are in support of legislative and constitutional change have been waiting for a long time to have the historic privilege to stand in this House to speak on this subject and to welcome this Bill which is a watershed in Irish social, legal and political life. It gives the Irish people an opportunity to face up to the problems of marriage breakdown which are growing in our society. It presents us with an opportunity to decide whether we wish to delete subsection 2º of Article 41.3 of our Constitution which states and I quote:

No law shall be enacted providing for the grant of a dissolution of marriage.

and to substitute a new provision. This new provision which will be presented to the people on 26 June indicates clearly the type of divorce legislation that the Oireachtas would enact if the people demonstrate in the polls that this is what they want. The new provision has struck precisely the right balance. It represents a pragmatic solution to the divorce problem not least because keeping divorce a constitutional matter allows the people through this, or any future referendum on this subject a continuing veto on the form of divorce. Without such a concession no divorce referendum would succeed. It removes from those who are opposed to this measure a major portion of their argument though in the initial stages that did not deter them because in the first rush of enthusiasm to attack the proposals the Catholic bishops went on record as talking about this measure as being an extremely liberal one. I noticed that this argument has died down and the latest argument to surface and which has been voiced in this House is one concerning issues of property. I will come to that again in the course of my address.

There are five conditions for the granting of a divorce attached to the new provision. First, a court must be satisfied that the marriage has failed: second, failure must have continued for a period of, or periods, amounting to at least five years; third, there is no reasonable possibility of reconciliation between the spouses; fourth, any other condition that might be prescribed in law has been complied with, and fifth, that adequate and proper provision having regard to the circumstances is made for any dependent spouse and children.

It is very important that the public are made aware that each and every one of these conditions must be satisfied in a court of law before a decree of divorce can be granted. It follows that in the framing of legislation which would be consequent upon the passage of a referendum that there can be no dilution or diminution of these five most stringent conditions. It is my contention that this Government's proposal is a very carefully thought-out one. It is a moderate proposition and is a reasonable response to the many thousands of people in our community whose marriages have failed. I am also confident that the Government's proposal has due regard to the common good. Contrary to what opponents of this measure are seeking to suggest, the Government are not proposing a free for all, unrestricted soap opera, Dallas, Dynasty, Reno style divorce.

I would like to consider the backdrop against which this measure is being presented to the Irish electorate at the end of June. As a member of the Joint Committee on Marriage Breakdown and one who was — I say this in no boastful sense — assiduous in my attendance and in my commitment to that all-party committee I had a privileged and unique opportunity to examine the question of marriage in Irish society minutely. I worked at the coal face of Irish marriage by virtue of my membership of that committee. I read every single one of the 700 submissions made to that committee from individuals and groups and I attended the oral submissions of the 24 groupings which were held by the committee. We found it difficult to quantify the scale or the scope of the problem. In one of our chapters on statistics we deplored the lack of availability of statistics in the area of marriage breakdown. There are no comprehensive detailed statistics. Those in favour of divorce, principally the Divorce Action Group speak in terms of approximately 70,000 people involved in marriage breakdown and, hardly surprisingly, those who are opposed to the measure speak in terms of approximately 20,000 people involved. Some research in the matter yields more objective and therefore more realistic figures.

For my purposes I would prefer to deal with the court statistics which have been made available to us. They indicate that there has been an astronomical increase in the numbers of Irish people seeking legal redress in the court for their problems. The majority go for barring orders or maintenance orders. Some go for both and some for one or the other. These statistics are not generally available because, being family court cases, they are heard in camera and they do not excite the attention of the press.

Between 1980 and 1985 in excess of 15,000 wives went to the District Court seeking barring orders and translated into couples this means that some 30,000 married adults during those six years were experiencing marriage problems of such an intensity as to take them to the court. We can see a marked increase when we compare the figure of 15,000 with a mere 2,000 who sought similar relief between 1976 and 1980. It is reasonable to assume that many hundreds of couples come to their own private and personal arrangements without seeking recourse to the courts. They do not become part of the statistics. For the period 1980-85, 8,963 wives sought maintenance orders against their husbands in the District Court. In some instances wives seeking maintenance orders were also seeking barring orders but not always, because there is not always an overlap between both. If we said that there were 15,000 couples whose marriages had collapsed and who came before the District Court in a six year period we would be under-estimating the extent of the numbers. About one-third of the couples involved in maintenance proceedings could be added to that figure. There was a change in court structures. Since the Circuit Court assumed a working jurisdiction in the area of family law in 1982, 1,500 couples sought court orders. Prior to 1982 a similar number of cases would have been heard in the High Court. It is clear that we are talking about an extraordinarily high number of couples who had to go to court on foot of grave, painful marital problems.

It is my conviction that this problem is not merely an urban manifestation. Marriage breakdown is more concentrated in our larger urban centres but it is also a feature of provincial life and rural life. Living in Waterford and being, in the course of my work, in contact with large numbers of people in the entire county I can state categorically that the problem of marriage breakdown is as prevalent there as in any other part of the country. I am sure Senator Hussey finds that this is so in his part of the country also, though he did not refer to it specifically in the course of his contribution.

We would prefer to live in a society where marriage breakdown did not occur. I would love if I did not have to stand here in this House and speak about the problem of marriage breakdown. I would love to think that every couple entering marriage would have cast-iron guarantees that nothing would go wrong, but we do not live in an ideal world where only the mature and the responsible would marry and where marriage vows would be honoured until the death of either spouse and in which alcohol, violence and inadequate personalities would not threaten the very basis of marriage. Unfortunately, in the real world for which we must legislate, and for which this Government are courageously setting forth to legislate, some people marry too young and for the very wrong reasons. Alcohol, violence and immature personalities undermine marital harmony and consequently marriages break down. In the real world marriages have always broken down for those very same reasons.

What has changed is the attitude of the parties involved to that broken marriage. A generation ago there seemed to be no alternative to an unhappy marriage other than grin and bear it, but that has changed. It is good and healthy and wholesome that it has changed. A large part of the change is due to the changing role of women in society and the perception of couples who enter a marriage because they want a quality marriage. It is right that they should want a quality marriage, and it is perfectly correct and appropriate that when they see cracks appearing in that quality by virtue of immaturity, alcoholism or violence, they should question in the first instance what they can do about this. I believe every couple involved in a deteriorating marriage should seek counselling, guidance and advice and, indeed, a large portion of the Government's words in relation to these measures we are introducing relate to the fact that we believe very strongly that marriage counselling should be available and further resources provided to enable this to happen.

In the past, because of their economic dependence on their husbands and their usually large families, women seemed to have no choice at all, and the fact that the couple remained together despite the miseries felt by one or both partners did not necessarily mean that the marriage worked. We are all familiar with the phenomenon of the Irish silent marriage and we all know what that means. We know there are marriages that are nominally marriages where there is no dialogue, no communication of spirit, no conversation between husband and wife and where the quality has gone out of the marriage.

What has changed in recent times is that the parties to unhappy marriages are willing to part and are prepared to form second relationships and to have second families. There is no need for divorce in a society in which the partners stay together through thick and thin, but there is a need for divorce in a society where the parties to unhappy marriages break up and form new unions which are not recognised by law. This is the case in the Ireland of 1986 and the Government are obliged to consider legislating for this.

Marital breakdown leading to a decree of dissolution or divorce is always — and I emphasise always — a deeply distressing situation for the parties concerned and for their families and many of those opposed to this measure are long on compassion. Compassion without a practical solution becomes rapidly converted into pity and a great number of people involved in marriage breakdown would not thank anybody for pity for their situation. What they demand from an Irish Government is effective legislative action to enable them to lead lives of dignity and honour. The absence of a divorce jurisdiction has had a most damaging and undermining effect on Irish society.

Let us consider what we have in our midst at the moment. We have a proliferation of extra-marital unions and inevitably the fruits of such unions. Given that marriages will continue to break down, the numbers of such second relationships will increase and inevitably the numbers of such children which will result from these relationships will also increase. Such unions have all the appearance of regular families but they are without State recognition or protection as a marriage. In her contribution Senator Robinson left nobody in any doubt as to the lack of constitutional or legal protection available for such children or, indeed, for such persons involved in these arrangements.

People who have obtained foreign divorces which are not recognised in this State have remarried and find that their second marriages are not recognised by the State. People have obtained Roman Catholic Church annulments and have remarried in Catholic Churches leaving themselves religiously on-side but very firmly off-sidevis-á-vis the State which does not recognise the annulment or, indeed, the second marriage. I would be interested in hearing what opponents of this measure have to suggest should be done about this. There is a body of opinion which has indicated that the best way round the problem would be if the State recognised these Catholic Church annulments. That would be a sectarian measure because the Roman Catholic Church is the only Church which grants annulments and any suggestion that the State should give special treatment to any Church would be against the Constitution and it is an untenable argument.

We have situations of legal subterfuge where people set up home and are obliged to have a change of name by deed poll in order to put a veneer of respectibility on their relationship. None of the situations I have outlined can evoke any social pride in our handling of this human reality. I put it to Senator Hussey and Senator Hanafin and all of those opposed to this measure that we do less than justice to all of these people if we turn a blind eye to their situation, and we do less than justice to Irish society as a whole if we choose to ignore the plight of these people.

Especially disturbing is the fact that we have in this country a great number of young people of marriageable age but yet the actual rate of marriage is on the decline. This was referred to in the Report of the Joint Committee on Marriage Breakdown and we queried the reasons why this should be so. The thinking was that many young people are fearful of the fact that entering into the marriage contrct allows them no way out ever, and for that very reason they do not wish to become formally, legally married. That is extremely disturbing. Also there is the fact that they do not like what they see in marriages around them. That is something about which we should ask ourselves.

I want to spell out very clearly what it means for people who are in informal unions to be outside the law. The children of these informal unions are, as of now, illegitimate. Spouses in these unions do not have legal protection. For example, the Family Home Protection Act, 1976, does not apply. Dependent partners and children have no legal right to maintenance and the woman living with a man outside marriage cannot obtain a barring order in the event of violence to her or to the children. If such a woman is deserted she cannot claim benefit and if widowed she cannot claim a pension. Neither she nor her children of the second marriage has any succession rights to her partner's property.

There is the hardline attitude of: "So what? These people have chosen a path outside the law and there is no reason why the law should accommodate them". That is an extremely rigid application of a certain type of thinking and it is one that I have heard in the course of this debate and which I deplore, because it does not recognise human fallibility, human failure, human inadequacy and marriage breakdown. So we have a growing situation of legal chaos as I have described, and it is causing much hardship. Only a limited measure of divorce, such as the Government propose, can bring an end to the social and legal scandals which I have described and which we all know exist, which will not go away, which will continue to proliferate and which must be addressed by a responsible Legislature.

Divorce is necessary on the practical grounds which I have spoken about but its introduction also involves a matter of principle. The Joint Committee on Marriage Breakdown pointed out that representatives of most of the minority religions in this country sincerely believe that the current constitutional position discriminates against members of their Churches and religions. One could extend the argument to those who subscribe to no religion. Indeed, we very often forget this group within our society. We have, no doubt for the highest of motives at the time, found ourselves in a situation where the constitutional prohibition on divorce coincides with the teaching of the majority Church. In 1937 the desire to provide constitutional protection for marriage by prohibiting divorce was seen as more important than respect for the rights of the minority who believed that divorce in certain circumstances was acceptable. As a society we are still ambivalent about the principle of respecting the rights of minorities when those rights conflict with the view of the majority. Our largely homogeneous society has not had to learn the hard lessons of compromise which are at the heart of the survival of other democracies.

I have no doubt that, in the long term, all of this will be subject to change as the implications of the Anglo-Irish Agreement, which flowed from the Forum, become clear. Unless all communities in this island can agree on amodus vivendi on the basis of an agreement to disagree and to accommodate difference the future of this country as a whole is very bleak indeed. We now have an opportunity to vote for the kind of society in which all Irish people can live as one or in which only those adhering to the majority base can feel at home and I know which kind of society I want Ireland to develop into.

One value being deflected in the entire debate is the liberty of citizens to exercise a choice in the pursuit of their interests, in the pursuit of possible happiness without unnecessary infringement from others. Some will argue that freedom must be contained and limited by the requirements of the common good. What is the common good? Is it the good as defined simply by a majority of society and if so what is the respect for minority values? What is the status of minority rights or indeed what is the position of minority groups?

Those opposed to this measure have concentrated their arguments to the effects of divorce on the property rights and that is somewhat disappointing. I was speaking to a journalist today from Thames Television who is here to cover the debate on the referendum. This reporter fully expected to be flung into the maelstrom of a theological debate but he finds the most gross materialistic debate taking place to date in the course of this referendum and he was extremely taken aback and surprised and I cannot blame him.

The concentration of arguments on the effects of divorce on the property rights and succession rights of the first family, spouse and children, are looming large in the course of the debate. I was pleased to hear the Minister of State at the Department of the Taoiseach Deputy Fennell say, categorically here this morning that 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 Article 41 from the first family and transfer it to the second family. That, as the Minister of State said this morning, is simply not true. She did not put a tooth in it. Parents remain parents after a divorce and that divorce can in no way diminish their inalienable rights and duties in relation to their children.

I would like to comment on the nature of the debate which is currently taking place inside and outside the House and I should like to put on the record the fact that I respect the rights of all to put their views and to be listened to with respect in the course of the debate. I hope fervently that this debate on the Tenth Amendment will not degenerate into what so many of us experienced during the course of the pro-life amendment debate. That debate reached unparalleled heights and lows, whatever way one wishes to regard it, of acrimony and hostility. The manner in which we handle this debate will indicate whether or not we are prepared to face the reality which I have described and which I know exists in our society. It will also indicate whether we are mature as a political democracy and it will also indicate whether or not we are a theocracy or a democracy or a republican democracy. I call on all people who support this measure to participate in the debate within their family, their work or their social circles. We cannot be shy or reticent about any measure of social reform. We must inform people. We must promote the idea not of divorce being good in itself but rather the necessity of having this minimal type of divorce, this necessary legal instrument on our Statute Books. We must persuade voters of the correctness and the timely nature of the Government's proposals and of the morass that would still remain if nothing was done about the hopeless legal situation of so many thousands of people in Irish society. We must urge all who support it to come out and vote on polling day. We should remember that this progressive measure could be lost by unthinking apathy or by sheer neglect.

In conclusion I would like to make my own personal statement. Senator Hussey referred to the values with which he was brought up. I too was reared in a Catholic home with Catholic values. My personal position is fortunately one of a happy marriage and I do not foresee any need to have recourse to divorce legislation at the moment. I believe very strongly that my own personal, moral and theological position is personal to me. It is something that operates within my life and within my family but it does not confer on me any right to deny another course of action to other people who either do not share my belief or wish to opt for divorce because they can square that with their own beliefs or personal circumstances.

In the course of my development as a human being I have learned to be tolerant, not to be rigid and doctrinaire and locked into a certain type of Church perspective on matters. The Roman Catholic Church in virtually every other country in the world has learned to accommodate the reality of divorce legislation. I understand that with the exception of Malta and Ireland every other country in Europe has divorce legislation. Life goes on, people live their lives, the Roman Catholic Church remains relatively undisturbed. There is a certain maturity about their acceptance of the realities of life in those countries. Would that we could have the same maturity and acceptance of the realities in Irish society which we all know exist.

I must comment on Senator Hussey's reference to the Taoiseach's speech to a group of law students which in turn he stated that the Taoiseach referred to in the course of his address to the Dáil. The Taoiseach, like most thinking people, allows himself to grow, develop and mature in his views. He does not necessarily hold the same point of view about everything continuously, infallibly and inflexibly. It is healthy, good and fully human to be open to new ideas and to be flexible in the face of changing circumstances, to be ready to act decisively, even if it is political risk-taking to put a measure such as this to the people. I am happy to support the Bill.

First, I am sorry to have missed Senator Hussey's address. I have listened to Senator Bulbulia's fine speech. It was excellent. She expressed views on life and tradition in this country. It represents for me all that is good in this society. What she has said sums up the whole approach that I would have to this debate. Also, it would sum up the whole approach which Irish people would have to society and the way in which they would like to see it develop. I congratulate the Senator for her fine speech. I agree totally with her remarks on the pro-life debate, which was a very messy affair and led us down a road that we should never go down again.

I welcome the debate on the constitutional amendment on marriage breakdown. What this amendment recognises, as all the Churches recognise, is that marriages do break down. The Government have written a careful and restrictive definition of irretrievable breakdown into the constitutional amendment to make it very difficult for people to part. They have actively encouraged them to come together again.

The amendment, if passed, would confer rights on those whose marriages have tragically broken down and who satisfy both the constitutional and legal conditions — the fact that the marriage has broken down for five years and that the rights of children and their dependent spouse have been adequately provided for.

It is unfortunate that the question of the rights of the first family have entered onto the centre stage of this debate. I wish to state that the spouse and the children of the first marriage will be fully catered for and protected. Their rights under the Succession Act, 1965, and under the Family Home Protection Act, 1976, will mean that the wife's right to a share in her husband's estate and her right not to have to leave her home without her consent are fully in accord with the Constitution. Thereby, it relieves the debate of this most important question which is being used by the opponents of the amendment to sow the seeds of doubt in the minds of people who would otherwise be very interested in supporting the amendment.

No one is claiming that divorce is a solution to marital breakdown. Divorce is needed to deal with the legal problems caused by marital failure and subsequent family unions and children who enjoy no legal protection at present. Divorce deals only with the civil marriages which take place on the signing of the register. It does not and cannot interfere with the spiritual and indissoluble nature of marriage according to the teaching of many religious denominations.

People from all political and religious viewpoints wish to see the family receive greater support. We, the legislators have to address the vital area of family support systems. Provision for funding of those organisations already working in the area of remedial and pre-marriage counselling is a very positive step in the right direction. The raising of the marriage age and the requirement of three months notice for marriage is a very welcome innovation. Adequate preparation for parenthood should be a priority. Children must learn about marriage from their parents' relationship with each other and with their children.

As a society, we seem to be very good at paying lip service to our children. However, we are very slow, through our laws and attitudes, to grant them their rights as human beings. In this regard, I welcome the Status of Children Bill, 1986, which embodies the fundamental principle of equality for all children, irrespective of the marital status of their parents. Through the Bill, the State will be recognising and giving legal protection to children's rights. Any idea that children born outside marriage are second class human beings or citizens should be totally put aside. Hopefully, the Bill will help to condition people generally towards a better attitude to the social needs of children.

It is regrettable that that Bill had not come before this amendment because it would have given this debate a totally different dimension. The prohibition on divorce is purely negative. It has not done very much to prevent the incidence of marital breakdown in Ireland. It is not a compassionate response to couples, families or children in need of help. There are many thousands of families whose marriages have broken down and who are in desperate need of help. I have heard most unchristian statements made by some of those who claim to have the interest of the family at heart. It saddens me to think that the bigotry, self-righteousness and the intolerance which have caused so many problems are once again brought to the fore in this campaign. We have seen it before in the pro-life amendment debate and I am afraid that in certain cases we are seeing it again. This is a very sad reflection on the country to which we all belong.

I would ask that all parties on both sides of the argument should conduct the debate with dignity and in keeping with the times we live in. We should display to ourselves and to the world outside that we have at last come of age as a people, where we can debate a situation from the facts relevant to both sides, that we are not carried away by innuendo or by the old nod and wink, looking for votes, and political advantage. The case is that so many families are in desperate need of help. Their marriages have broken down. They will never be put together again. The children are in limbo. The situation is desperate for them.

If we are, what we claim to be, a Christian society, we will look upon this Bill in a Christian and humane way and treat the debate with the dignity that it deserves. If that is done, whether the amendment is accepted or not, does not make any difference. The fact that the proposal is brought for the first time to Irish society is a major step in the right direction for this Republic.

As Senator Bulbulia has stated, it is a major step for this country. Let the constitutional amendment be accepted or rejected on the basis of whether it is right or not. It should not be done on the basis of materialism or people's fears being exaggerated or on the basis of an incidence which represents one-quarter of 1 per cent of marriages.

If we conduct the debate in that way, we will have achieved a major victory for democracy and openness in this society. Surely, that is what we all want.

I will begin by reiterating some of the sentiments of the previous speaker, Senator Conway, because I have attended and enjoyed most of the debate today on the Second Stage of this Bill. Occasionally, I think people involved in politics in Ireland need a morale boost so that we can, if you like, encourage ourselves in regard to the vision of society we want to create. Sometimes, though, when we are knocked back again and again we feel we will never see that vision come to fruition. We have had a social vision of a pluralist free Republic laid before this Seanad today by several speakers ranging from my colleague, Senator Michael D. Higgins, through to the marvellous contribution of Senator Bulbulia, Senator Robinson and others who have laid down the framework of a pluralist republic, free open society where all peoples would feel they belong, that they had a stake in it and where no particular dogma or theology would circumscribe their lives, which would lay the rigid foundations and legal structures in which we all must live. I enjoyed today for that and for another reason. We have, I think, reached a certain historic point in our existence as a nation when this Bill is debated as a Government measure in these Houses. That is a marvellous achievement and something which I, as a Member of the Government side of the House, take great pride in. I welcome the opportunity to make a brief comment on the contents of the Bill.

It is important that each Member of this House would take the opportunity to stitch into the record his or her own attitudes to this measure. So often in the past when measures that somehow are regarded as thorny, sticky or contentious are brought before these Houses many people seem to wet a finger, stick it into the air, decide which way the wind is blowing and on the basis of that measurement, decide their attitude: whether to be for, against or stick their head in the sand like ostriches. My colleague, Senator Michael D. Higgins, in an earlier contribution requested everybody to state his or her position. It is not as if the issue is so new or so fresh that we have to have time to think about it again. Probably no issue has been debated as much as this one. We have had for a decade or more initiatives brought into these houses to either remove or reform or amend the prohibition on divorce in the Constitution. We have had the situation where a Joint Oireachtas Committee made up of Members of both Dáil and Seanad spent exhaustive hours, weeks and months debating the myriad of issues that relate to marriage breakdown.

The details of submissions and the type of analysis that went on during those weeks and months were already alluded to and outlined in detail by Senator Bulbulia. Therefore, people cannot act as if they have not had time to fully assess all the implications of the issue before us.

I re-echo the sentiments of Senator M. Higgins when he said we all have a responsibility now to state our position and not to raise red herrings and say: "I have no responsibility in actually making the decision but, but, but, but." We have a responsibility to make a balanced decision on the basis of all the evidence that is there before us, that is there for anybody who had the inclination to read, to study and to look at.

I want to take the opportunity to stitch my personal view into the record. My view is a simple and emphatic one. I welcome the amendment. I welcome this Bill and the amendment contained in it as a compassionate and just alternative to a blank prohibition on divorce and remarriage. I commend the Government strongly for having the courage finally to take this issue to the Houses of the Oireachtas, to grasp this nettle and to allow the people in the wisdom of the debate to make their own decision on it. I sincerely hope the amendment will be accepted. I sincerely hope that the people will decide in compassion, in social justice, to vote yes when they will have the opportunity next month of doing so.

It is important to re-echo the distinct hope that the debate which has already been initiated around the country will be a mature debate, taking into account the human suffering and tragedy that is tied up in the core issues of this Bill. I hope the debate will be balanced, objective and calm and will not be either a point scoring exercise by cowardly politicians or an effort by the most reactionary forces to entrench once again into legislation their narrow restrictive view of the sort of Ireland they want but which offers no hope for the pluralist vision of an open Irish society that I believe, is in the interests of all the people of Ireland.

I cannot help but comment on some of the sentiments outlined by speakers on the other side of the House who clearly do not support the contents of the Tenth Amendment of the Constitution Bill. In particular, I paid great attention to comments made by Senator Hussey and I jotted down one or two of his remarks which struck me forcibly. He implied that marriage cannot co-exist with divorce. What about the rest of the world? There are two countries in Europe — Ireland and Malta——

Why do we have to be like the rest of the world?

——where divorce legislation does not exist. Is there no valid marriage in any other country in Europe but in Malta and Ireland? Are Irish marriages so frail, Irish relationships so vulnerable that they need to have the legal bind of marriage tied into the constitution or they would fall apart? Re-echoing the same statement he said, and I quote: "a life long contract but one guaranteed by the laws of the land". If it is not that, does love, caring, genuine bonding to one another count for anything that you must have a legal contract that cannot be broken or amended or else marriage will dissolve and fall apart? Surely that sort of logic flies in the face of all the evidence that is available from around the world. The Senator asked what would happen if one partner left and refused to return. What kind of a marriage exists if one partner in a marriage leaves and refuses to return to the other partner? Should we send out the baliff to bring him or her back and to refasten the chain? That sort of illogic mystifies me. I believe the majority of Irish marriages are based on love and care, on a genuine bonding and on relationships that have ups and downs. But I also believe there are many people who have made mistakes in their lives and who are now tied into legal marriage contracts which present great pain for them, and from which injustice they should be allowed to be released.

Somebody writing in a newspaper recently made a point that to argue that the availability of divorce leads to broken marriages is a bit like arguing that the availability of confession leads to more sin being committed. This point was reechoed by my colleague, Senator Michael D. Higgins, when he said it is like arguing that the availability of umbrellas causes rain. It is a dramatic way of putting it, perhaps, but it is nevertheless a fact that in our society, which has always been free of divorce — but for an exceptional way on which I will touch later — we have not been free of broken marriages.

I would love to think that there was no need for a change in the law relating to marriage and that there was no need for the introduction of divorce. But I, like everybody else here, know only too well of marriages that have failed, of people and children who are under severe stress in those failed marriages, and of other people who have already established second families, having escaped from a failed first marriage. We cannot have a rational debate on the subject of divorce without putting down some initial markers. I will make a point or two on which we can all agree, whether you are in favour of the amendment or opposed to it. Fact one is that, with the best will and motivation in the world, some marriages do fail, to a point where any reasonable person will have to concede that the marriage is dead. That is an acceptable, understandable point of view that nobody could argue with.

A second fact is that the death of a marriage in many instances leads to bitterness, hostility and financial stress and can even result in traumatic consequences, particularly, for the children involved.

Fact three, the State and the Churches already recognise that marriages fail. There are a number of measures available for dealing with this. There are, for instance, Catholic Church annulments, which give the partners the right to remarry in the Catholic Church and as a consequence render the children illegitimate. There are foreign divorces, which in many cases are recognised under Irish law. These are basic facts about which there can be no great disagreement. The only thing missing from our law — and this is where the disagreement will begin — is a provision enabling people to remarry after the existing marriage has been declared dead by an Irish court. I would argue that agreeing to write that provision into our law is nothing more than facing up to reality, recognising that the facts I have mentioned have their own logic. If the Dáil, the Seanad and the Government of the day refused indefinitely to recognise the suffering that exists in failed marriages, we will rightly be accused of turning a blind eye to a serious social problem and turning our backs on the many tens of thousands — I will not get into the numbers game — of people whose only legal redress is to have the marriage that isde facto dead declared legally dead.

We in the Labour Party have argued for a very long time that people who are trapped in these unhappy situations should be given the opportunity of a second chance. But we have also argued that the poblem should be approached with care, that ultimately divorce should be available only within very clearly defined parameters, as a last resort down a long road. This is why I find the approach outlined by the Government in the Bill to be such a welcome one. It is careful and well-considered and it makes absolutely clear that divorces will only be granted as a last resort. The provisions are there. I will not read them again into the record of the House.

Reconciliation will be the key feature and judicial separations, which are a prerequisite to divorce, will not be granted unless reconciliation has been tried and has been seen to fail. The minimum period of separation — the acid test for failure — will be five years and no divorce will be granted unless the courts are satisfied that adequate provision had been made for dependants.

Many Senators, particularly Senator Robinson, referred to the legal smoke screens that people can put up, particularly, when talking about an amendment to the Constitution, because when you start to dissect comma and colon, phrase and verb, you certainly cause confusion if nothing else. Senator Robinson, in her contribution on the Second Stage, made it abundantly clear that the provisions that exist already in the Constitution leave much to be desired. Certainly they could not be defined as cherishing either all the children of the nation equally or all the women of the nation equally, or indeed, all the spouses of the nation equally. So let us be realistic in this debate. Let us address the real problem. Let us look with compassion on the real problem, and then in the fullness of careful deliberation, let us decide in compassion.

The contents of the Bill before the House are the basic ingredients of the divorce law which it is proposed to put into place. Perhaps the most important feature is that the basic requirements are being written into the Constitution itself so that only the people of the country can change them subsequently. Many people genuinely fear that the mere removal of the constitutional prohibition would leave it open to the Oireachtas to legislate in a way that they would find objectionable. The method proposed by the Government is not simply to remove the constitutional prohibition but to insert a clearly defined, rigid set of structures that must be followed. The people know in advance the sort of parameters that will circumscribe any legislation. Those parameters can only be subsequently changed again by referendum and reference to the people. That must surely allay any fears that Las Vegas or Californian type divorce would be available on demand. Because such care has been taken, I believe that the divorce law that we will introduce will be realistic and compassionate, yet restrictive and limited. It clearly sets out to treat divorce only as a solution available as a last resort. That is the way I believe it should be.

I know that there will be many views on both sides of this debate. I urge as many people as possible to consider the issue calmly and objectively. I hope that the debate will not reach the frenetic heights attained on previous social issues. It is extremely important that the Irish people who will have to live with the consequences of the decision should fully participate in that decision and fully understand the consequences of their vote. Those of us who are seeking change believe it is change for the better, modest yet realistic change for the betterment of our country. I genuinely believe that the time has come to give the people who have suffered a second chance to make it come right.

I am very happy to take part in the debate. Except for a few statements in recent weeks and days, the debate has, as has been asked by all parties and certainly by my party, been calm and cool. In this House we do not normally play politics. I do not intend to do so here.

As a member of the all-party committee I want to put on record, because I have not had the chance to do so before, my sincere thanks to that committee and one of the members, Senator Catherine McGuinness, who played a greater role in it than I did. Even though there were different versions of what we did and what the end result was, we did a service to the nation.

I may have got older and wiser in public life, so I understand the views on the two sides of this delicate debate. There are two sides to it. I am not too sure which side is right but I am quite clear in my own mind as to what side I am on. It is wrong to say that people like myself, who do not take the same view as some Government Senators, should be accused of being under the threat of any group of bishops or their croziers. Senator Magner's remarks, made so generally in that context were most unfair.

The values involved for us as a nation and the salvation of marriage and the family are worth almost any effort. If only those who over the past few years have been putting so much work and effort into the advocacy of divorce in Ireland could have been persuaded to put even half of that effort into the campaign to correct the real causes of marital breakdown I am quite clear in my mind that they would have made a far greater contribution to this country's future.

I do not think there is such a thing as a perfect marriage. There are ups and downs, and we have all had them. It would be foolish if it were not put on the record of the House that there will be problems. My deep worry is that if this legislation goes through people, who will be here long after I have gone from public life, may not work quite as hard as I did to make marriage work. I have as much knowledge as anybody else of the amount of work it takes. I worked in public life for the past 35 years side by side with my husband, Derry. I have a family, and I have listened with great care since this debate started this morning.

Will all the social problems of the nation be solved? Will all the marital problems be cured if the majority vote "yes" in the referendum? How many of the recommendations of the marital breakdown committee have been implemented to date by the Government? Divorce legislation is giving the right to remarry and people have said — I am not too clear about this but I am sure the Minister will answer some of the questions I ask — that one can remarry once, twice. How many times can one get a divorce in a lifetime? Where will it eventually lead to?

People who talk about the children and all the sadness this legislation will bring would want to be clear in their minds that this legislation, if and when it goes through, will correct all the sadness. Tremendous emphasis is being put on the children. I totally accept that. I want to put it on record that I accept every Senator's viewpoint. Perhaps years ago I was not as open to other people's views but serving has thought me a lot of hard lessons. I would ask people to accept my viewpoint and reservations.

Our neutral role has been referred to. If our leader makes a statement, whichever side it is on — and he is not allowed, it seems, to have his own private views — or if he gives a directive to his party, which he is quite entitled to do, it is dictatorship but, if the Tánaiste of the Labour Party or An Taoiseach, Garret FitzGerald, give the same kind of advice or directive to their parties, it is advice. I do not understand why it is "advice" when it is Taoiseach FitzGerald and Tánaiste Spring, and "dictatorship" when it is Charlie Haughey.

It should be remembered that divorce is not the remedy for marital breakdown. In my view, far from being a remedy it will serve to undermine not alone the institution of marriage but the family itself. Much emphasis has been put on the family, and rightly so. It may be noticed that I have deliberately refrained from referring to any Christian values because I believe, despite my convictions, religion should be kept in the background in a debate in Parliament. I made reference to the bishops only because of Senator Magner's remark that we, on this side of the House, were being beaten into line by croziers. I put it on the record of the House that this is unfair. Most Senators on the Government side refrained from that kind of remark.

The most recent announcement regarding the establishment of conciliation services is a case in point. It is too late and the officials to be appointed to the service are to be of a rather junior rank which, I understand, is an unprecedented low level in this State. To me, this sums up the Government's intention in this regard. I refer to the persons who are supposed to be appointed. Their rank is junior rank. I do not understand why persons of that status should be appointed by the Government.

People have the right to know the factual extent of marriage breakdown. I ask why did the Government rush through the Bill before awaiting the results of the census which for the first time had questions regarding marriage breakdown. When I filled up the form I felt that was a delicate question. One handed that open form back to a person at the door. It did not make any difference to me, but it would have made a difference to some people. It would have been better if the results of that census were known before the Government moved on this Bill.

Another example which calls the Government's intention into question is that the wording of the Bill does not mention legal separation as a precondition to divorce whereas the statement of intent is at great pains to say that this will be included in the divorce legislation which is to follow if the referendum is carried. Why not write "legal separation" into the constitutional amendment? The way it is, it is the Houses of the Oireachtas that can change it at any time. Write it into the Constitution and only the people can change it, and rightly so.

We have heard about a united Ireland and that if we vote this through, the following week the Prime Minister, Mrs. Thatcher, will give this nation unity. I have strong views on a united Ireland, but I do not understand how people in public office can make a statement that if we allow divorce down here we are going to have a united Ireland. That is not so. Senator McGuinness will be speaking tomorrow, and might not like me saying this but I have very strong views on a united Ireland. I do not think that granting divorce here will make one whit of difference to a united Ireland.

There is still confusion about Fianna Fáil's line. Let me reiterate the Fianna Fáil position which was fully and clearly outlined in our first statement on this matter when we learned of the Government's intention to bring forward this referendum. We stated that having carefully considered all aspects and implications of this proposal and, in particular, its profound effect on the position of families and the nature and quality of our society, and having also regard to many different but sincerely held views in the community on this issue, we had decided that the question should be left to the people as a whole to decide. We decided that we would not oppose, in the Dáil or Seanad, the proposal to hold a referendum. It was said here that one Senator was confused about our neutral stand. There was no plan by the Senators on this side of the House to come in, one after the other and speak one way while the Government seemed to speak the other way. If I felt differently from what I am saying I would say it, because we were given the freedom to take whatever stand we liked. Getting back to my earlier remarks about how Fianna Fáil stand on policy, I saw nobody giving wide coverage to the fact that we were free to have our own views on it.

The five-year period worries me. It states that after a five-year separation divorce will be granted. I listened with deep concern to Senator Eoin Ryan this morning whose opinion I value on a lot of things. He has been a friend of my family and of my husband, Derry, for many years and I value his opinion. He is a lawyer of distinction. When I heard him confused about when the five-year period starts, and how many "five years" can there be, and how many marriages, it worries me. The Minister of State in her speech said:

...will have to be in place for at least two years before a divorce can be sought...

She said "at least two years".

After legal separation.

After legal separation.

...will have to prove that they have been separated for five years.

I saw the words "at least two years" and I noted them. I am wondering when the five year period starts. If I have worries this is the place to voice them and, no doubt, the Minister will clear them for me.

Senator Eoin Ryan said he was not clear about the legal state regarding the legislation. I have a holy horror that the legal people are going to clean up with this legislation when it is passed. The cleaning-up will take place in the early years, if all the sadness we hear about is there. There will be a certain section of the people who will not be able to afford the type of legal back-up they will need. When we hear about possible discrimination between groups A or B, I worry that, if enacted, this legislation might only be for the well-off in our society.

Many Senators including myself, were confused here today about where the first or second family stand in relation to who will get what when this break-up takes place and when the divorce comes through. The Minister stated:

If she loses the benefit of a dwelling-house 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 also as a constitutional right.

I was talking earlier today to a lawyer who understands this legislation. There will be a whole circle of courts and advice centres. We are talking here again about property, but there will be the people who have not got property. How many men in this country can afford, financially, to finance two families? These are the questions which will have to be asked.

Reference was made today to the Succession Act. Remarks were passed about the Succession Act by a certain Deputy in the Dáil, which implied that Fianna Fáil only seemed to be interested in the Succession Act of the sixties and in who would get what when all of this was dealt with. I remember the Succession Act going through this House. My husband Derry, was a Front Bench Senator at the time. Deputy Brian Lenihan was Minister put that Act through. That Succession Act went through at the time because of the sadness of cases down the country and, indeed, all over the country where mothers found themselves ending up in hospitals when property was handed over to a son or daughter. Senators from rural Ireland will understand why that Succession Act at that time was probably one of the best pieces of legislation that went through the Houses of the Oireachtas. It was absolutely necessary. What was unfortunate about the remarks of the Deputy who said that Fianna Fáil's interest seemed to be only in the Succession Act was that the those of us who remember how important the Succession Act was to people at the time can see property rights recurring here again. Property rights, would need to be quite clear in legislation.

I am confused as to how many families equal a family under Article 41 of the Constitution, if this amendment is carried. Nobody has asked that question. I am sure Minister Dukes has the answer.

I have referred to the Church of which I am a member and I am not going to refer to it again. I am a practising Catholic, but that has no bearing at all on my deep worry in regard to this legislation. If I thought that divorce was going to solve all the problems of families of broken marriages and of children of first and second marriages I would have no trouble at all in supporting it, but I do not think that it will solve these problems. I would hope that some of the values that were handed down to me can be handed on to my grandchildren. I am not being old-fashioned or antiquated. I just feel strongly that my grandchild, Jennifer, when she grows up should have some of the values that have stood me in good stead through many a though battle.

The last thing I want is advice from a Deputy like Deputy Michael O'Leary who has not even the guts to go along and marry once and then he comes along and he advises us on what we should do.

It would be better that the Senator would not refer to Deputies personally or to Members of the other House.

Thank you. He will understand it anyway. I have seen families with step-fathers and stepmothers. Some of them — but very few of them — have worked out. I have a deep concern here for the children of the first marriage. If it breaks up we hear about all the sadness and we hear that the second marriage will solve it. Very close to me I witnessed a stepmother and if that situation is going to be foisted on several families I think it is a step backwards.

Dr. Jack Dominian impressed me very much in an oral submission to the Committee on Marital Breakdown on 8 February 1984. He gave figures which should be put on the record in this debate. He said:

Since I am most familiar with the figures for Britain I can tell you that before the war there were about 10,000 divorces a year in Britain. After the war, there was a peak of 48,000 because of the anomalies of the war state. Those figures dropped to about 25,000 in the fifties and then they began to rise in about 1959-1960. They have risen ever since, with a big jump in 1971 after the new Divorce Act. Currently, from 25,000 per year in the fifties they are running at the rate of 150,000 per year. If you take men, women and children under 16 there are something like 500,000 men, women and children involved in divorce. Looking at the figures for the whole of western society something similar can be seen in almost every country. In America, the figures are very similar. One in two marriages are breaking down. In Britain it is about one in three.

You may well ask why is this happening? Why is there this great increase in marital breakdown in the whole of western society? Nobody is prepared to be unequivocal about the answers, but there is no doubt at all that during this period of time certain social factors have occurred. These are largely to do with the status of women. The emancipation of women has coincided with this period, the large increase in the number of women working has coincided, so that they do not have to stay in a household in a marriage in which they are not happy and there has been a large-scale increase in birth control and the reduction in family size. By and large it is women who are dissatisfied with their marriages. Seven out of ten petitions in Britain are filed by women. Lawyers say that this is not really for technical legal reasons. But in my clinical experience this is not the case. It is women who are displeased with the marital situation.

I have included these figures because they are frightening. Can the Minister tell us what role the present Attorney General will have if this amendment is passed. If there is a balance on both sides by those who draw up the legislation, if this amendment is passed, I would be quite happy to accept the results. People are the best judges in the end. I have seen people in similar situations and I worry about what slant the present Attorney General might put on things.

That is unfair to the man. He is not here to defend himself.

Acting Chairman

It would be better if names were not mentioned.

It was said here today that people are standing up and talking but not saying what side they are on. There are no thanks due to me for being big enough to allow everybody to have their opinion but in fairness, I am also entitled to mine. If I had made this speech five or six years ago people would say: "Tras is taking the party line". I have said what I have said, in the calm coolness of the few of us that are left here after a long day, because I feel strongly about it. If this legislation is ratified I do not think people will work as hard at marriage as people did when there was no divorce.

People today want everything soft. It is not meant to be an easy world. It is not because life was difficult for me that I take this stand but because I hope when I leave public life I will have left some standard and level of discipline for generations to come. To make a successful, good and happy marriage and it may not always be happy, one has to work at it and discipline oneself.

I am happy to have participated in this debate, I will be voting against the amendment. I have no trouble in saying what I will be doing. It is a pity the freedom which has been given to Fianna Fáil in this referendum has not been recognised more. It is sad when people decide to say they have no stand because they took a neutral stand.

If I upset my colleague from South Tipperary by my reference to the Attorney General, I apologise. I hope it will be a fair debate right to the end and let the people decide. I will accept, in total, the result.

Dá mbeadh gach rud mar ba chóir an domhan seo, ní bheadh gá ar bith leis an Reifrean seo. Ach ní mar sin atá an scéal agus tá pósanna i gcruachás. Tá rogha againn — deileáil leis an bhfadhb nó é a ligint tharainn. Is é mo thuairim go mba chóir dúinn déileáil leis. Tá áthas orm go bhfuil seans ag na daoine a dtuairimí a nochtadh agus tá súil agam go mbeidh síocháin ann nuair a bheidh gach rud thart.

I spoke on the Order of Business today when there was some dispute —quite a bit of agro over the fact that we were sitting until midnight. I made the intervention because in the Seanad there is no time limit on the length of contributions on Second Stage. I made the appeal that perhaps we should go for quality rather than quantity in our contributions here tonight.

As usual, I will be brief. I made up my mind that I was not going to get into any argument or comment that was made by anybody else. I have sat here for most of the day and have heard many useful contributions. Senator Honan has asked if divorce will solve all our social ills. The answer is it will not. It cannot solve all our social ills nor will it solve all our marriage ills. The question is, will it help marriage problems? I hope it will, Senator Honan also asked if it is only for the rich. There are many legal people here who can answer that better than I can. In part 2 of the Bill it says:

Where, and only where, such court established under this Constitution as may be prescribed by law is satisfied that — (i) a marriage has failed, the court may in accordance with law grant a dissolution of the marriage provided that the court is satisfied that adequate and proper provision having regard to the circumstances will be made for any dependent spouse and for any child of or any child who is dependent on either spouse.

That clearly says that if a person can not afford to look after one family they are not going to get the opportunity of trying to look after another one.

I want to take up the question of comparing Ireland to other countries. It is very difficult for us to pick any country and make a comparison with it because we have a different ethos and Christian outlook here. For the vast majority of people in Ireland marriage is very sacred and it is almost impossible to find a country with which we could make any valid comparison.

I welcome the Government's decision to put this referendum before the people.

It is time we faced up to this difficult issue. For my own part, I would like to see every marriage a happy and lifelong one but the reality, of course, is that some marriages are neither happy nor lifelong. While I, as a member of the Roman Catholic Church, accept that divorce, for me, is not allowed, I can not accept the argument that I, as a Catholic legislator, should impose my religious beliefs on anybody else. I disagree completely with the suggestion that, if divorce is introduced, every marriage is under threat. If I accept that claim I have to admit (1) that either every marriage is only a veneer or (2) that religion is a complete sham in Ireland. I admit neither of those.

I was glad to find that Dr. Jack Dominian, from whom Senator Honan quoted also, when giving evidence to the Joint Committee on Marriage Breakdown supported my assertion that the introduction of divorce would not put every marriage under threat. He said:

I have to say that if this room was filled by the Roman Catholic Bishops of Ireland and they were pushing me very hard about divorce, I would have to say, very clearly, that their fear that civil divorce would make marital breakdown worse or enhance it or facilitate it, my answer would have to be "No", it will make very little difference.

He gave that answer when he was asked for his view on the effect on marriages in Ireland if divorce was introduced. I know there may be quotations by other people which would prove differently, but he is an expert on this subject. I reject too the suggestion that our religious beliefs must be strengthened by the civil law. If we have Christian standards we should stand by them; if we have not we should not blame the civil law for our failures.

A happy marriage is a blessing that we often take for granted, but anyone who is not lucky enough to enjoy that state can live in misery. How are children affected in an atmosphere of rancour and even violence? How will those children be affected if divorce gives a break from this unhappy atmosphere? I find it hard to give a definite answer but from my own limited experience, I think children living in a violent atmosphere suffer in both long and short term.

Decrees of nullity are taken for granted by us, even though they too break up a marriage and family. Sometimes one partner is very upset but because the Church does it, it is all right. If those who get a decree of nullity marry again their future children are illegitimate. Surely we cannot allow this to continue if we have Christian values, nor should we allow the children of the first marriage, now annulled, to be classed as illegitimate. Protecting marriage partners is important — protecting children is much more important. Can there be anything more absurd than having a child registered under a father's name who clearly is not the father; yet that is what happens where new relationships take place. I know one can argue over the treatment children get where divorce takes place but I find it is very difficult to know whether they are worse off in the relationship that has broken up rather than in one that appears to be together and where they see nothing but unhappiness and maybe cruelty.

I welcome the raising of the marriage age to 18. If I had my way I would raise it to 21. Maturity is needed in a hurry in marriage and pre-marriage courses will do a lot to prevent marriage breakdowns but like the brook life goes on. I find it very hard to think that young people of today are less romantic, or foolish, than those of generations past. Senator Honan mentioned a few times how people had to work at marriages in the past, etc. They will enter marriage full of dreams of living happily ever after and, as in the past, many of those dreams will be fulfilled and some will be shattered. We are living in different times and different social conditions and with or without the introduction of divorce people will have problems in their marriages, but we cannot blame divorce if their marriages are unhappy just as marriages in the past have been unhappy.

For those who are happily married the question of divorce is academic and religious. It is easy to say we had to "work at it" but one could work all day making a hurley out of a blackthorn stick and fail miserably. So, too, partners can fail even after trying hard to make a go of marriage. Some marriages are not just unhappy; they are a form of cruelty. If the partners feel that divorce is their solution to the problem then I cannot prevent them from having that facility simply because I do not accept that divorce is permissible. For that reason I will be voting yes in the referendum to allow people the choice of divorce, if they so desire.

In conclusion, I wish to say that the Taoiseach has been more than forthright in his presentation of the facts. He has stated them openly and shown a wonderful level of tolerance, both inside his own party and towards those who hold a completely different line from him. It would be nice to think that his example and his plea for tolerance would be followed by everybody taking part in this debate, especially by those who hold extreme views, either for or against divorce, and that might apply more outside the House than inside it. Intolerant dogmatism helps nobody and Christian charity goes a long way in dealing with those who hold different views from us.

With Deputy Seán Barrett, Minister with responsibility for Sport in the House I must confess that I would be much more at home talking about some aspect of his responsibility such as athletics or basketball, or perhaps I could refer to the siting of the National Sports Centre. I believe that Athlone is the natural centre for the National Sports Centre and I would need no notes to speak on that subject.

We are talking about a much more important matter which is vital to the whole nation because on 26 June the Irish people will be called on to vote on an issue that will have major consequences for the present generation and for generations to come. The legislation is being rushed through both Houses of the Oireachtas as if it were in some way a crisis or major emergency legislation. We are sitting tonight until 12 midnight, tomorrow night until the same time and sitting on Saturday. About 12 months ago this House sat until 4 a.m. or 5 a.m. to deal with the Family Planning Bill. It seems that this Government see legislation as urgent and necessary for these priorities which are very much at variance with the urgent problems on the ground such as mass unemployment, punitive taxation, the crisis in agriculture and so on. This legislation does not warrant the emergency status it is getting.

The law as it stands regarding both annulment and divorce, that is divorcea mensa et toro— are based on the definition of a valid marriage as being life long. Divorce a mensa et toro allows a married couple to separate but neither separated partner can validly marry again while the other partner is still alive. The referendum next month will ask the people if they want to change that position. Do the people want to legally redefine marriage so that a valid marriage is no longer in law a life long one?

If the referendum is passed it will bring to an end the legal concept of a permanent marriage and of a permanent family home. It would be no more than a temporary arrangement that is at the mercy of one partner. If divorce is allowed, from day one, an element of defeatism enters the marriage scene. This will act firmly against the success of each and every marriage. How can we have in the future happy and secure families when the threat of divorce hangs over the head of one or other partner? It will no longer be a case of whether one wants to keep their marriage until death because their partners will, in law, have the right to seek an absolute end to it.

Experience in other countries has shown that once divorce legislation is introduced there is an increase in marriage breakdown. For example, in Northern Ireland in 1970 one in 40 marriages ended in divorce, five years later this figure had jumped to one in 26 and in 1983 it was one in 25. At present 70 per cent of divorces in Northern Ireland are granted on the basis of separation. The required period of separation is gradually being shortened so that in many European countries divorce is available after one year's separation. Divorce legislation in Britain was introduced on the basis of fault, such as cruelty, desertion or adultery. Now this is not the case. Two out of every five marriages end in divorce. In the United States one in every two marriages ends in divorce.

Divorce breeds divorce. It is disastrous for family life, for women and for children. In the United States the standard of living after divorce for ex-husbands increased by 42 per cent; the standard of living for women and children fell by 73 per cent.

The question of children is all-important in this debate. If a couple have problems, such as one or both partners being violent towards one another, what can divorce solve in this instance? If they remarry they carry their problem of being violent — or whatever it may be — with them into their next marriage. In the United States, surveys have shown that there is a clear parallel between this and a multiple divorce situation. The real suffering is inflicted on the children in such relationships as they inherit the harmful attitudes and selfish motives of the parents instead of the sound values that would be picked up from a stable marriage. In a sound marriage situation we are always making decisions about what is good for relationships. By growing in maturity we often have to change ourselves and to discard our selfish attitudes. Compare this with a divorce situation where through immaturity, the couple merely act on their feelings and in a stress situation cop-out as if they were not mature enough to see that their loneliness or delusion, or whatever it may be, is as a result of a lack of commitment to each other. If that couple get divorced then their children inherit these bad values and are themselves affected.

There have always been broken marriages in Ireland. Twenty years ago they were not talked about because, like many other Irish problems people hoped that by not talking about them, they would go away. Today the situation is different. It is good to talk about problems and to look for ways in our society to alleviate them. The crux of the matter in this instance is that suddenly we are in a panic and instead of being constructive, we have divorce as the magic answer foisted under our noses.

It has been said, and it is true, that one has to work at marriage. I have known many couples who have had problems in the past such as drink problems but they worked at their marriages. They would freely admit that had divorce been available it would have been the soft option and they might have gone down that road.

The role of the priest in this debate is important. I recall the missions we had in many parishes around the country when I was growing up, 20 or 25 years of age. The priests, whether they were Jesuits, Redemptorists, or whatever voiced fire and brimstone from the pulpits on matters of faith and morals. Happily this has changed. We now have a calmer, more relaxed and more teaching approach to these problems by the clergy.

We are told by the Joint Committee on Marriage Breakdown that 6 per cent of marriages are in difficulty. This is a minority grouping. Ninety-four per cent, therefore, of marriages we can assume are happy and successful ones. A new feature of Irish life in recent times is the advent of pressure-minority groupings. I am not talking about minority religions. The small number of people involved in any cause who do not share the popular or majority opinion come together as a minority-pressure group. It is strange that offending the minority syndrome is now regarded as being more of a crime than say, rape, robbery or any other serious crime. We are expected to remain silent and to permit everything so that these people can have their rights.

Many politicians have gone soft in this area. Many of our priests are gone soft on matters like this where they have a role to play. In this case, there is a need for priests to speak out boldly and clearly in defence of the family. It is their duty to teach God's law on this vital matter. Doing this, I must stress, does not and should not mean insulting people with an opposite view, nor does it mean forcing any doctrine on anyone because to do so, we all agree, would be a violation of freedom. It is the duty of our clergy to spell out the rights and wrongs of the argument, the seriousness of this problem for future generations as they see it and know it.

The cost of divorce has been referred to. I certainly cannot understand the reason for the silence from the Government as to the cost of proposals on divorce. Clearly, there are going to be huge implications for the Irish taxpayer. According to the records we have in the US, 85 per cent of men who are divorced do not pay alimony to their former wives and those women must fend for themselves. The making of divorce readily available to couples who have been living apart for five years or more will accelerate the present trends towards marriage breakdown. This, in turn, will increase the number in receipt of deserted wife's allowances and unmarried mother's allowances. The proposed amendment to Article 41 of the Constitution provides that a court may grant a dissolution of marriage if it is satisfied that certain specific conditions are met. The court must be satisfied that adequate and proper provision, having regard to the circumstances, will be made for any dependent spouse and for any child who is dependant on either spouse.

This provision will place the court in an impossible position if the person concerned is unemployed and in receipt of social welfare unemployment benefit or if the person concerned is on a very low wage. How can the court be satisfied in the case of a person who is unemployed or a person who is on low wages and where a wife has no separate income that adequate provision can be made for his spouse or his dependent children when he remarries? The court order is one thing, but can it be observed? I do not think it can in such cases. It would be unrealistic to expect a divorced husband to continue to give adequate support to his former wife and children if he is supporting a new wife and family.

It seems inevitable that, within a very short period of time, the State will have to support many divorced spouses and children as is the case in many other countries. Our social welfare budget will increase dramatically. At a time when other Government services and agencies are being curtailed, it is reasonable to ask how the Government can justify this extra expenditure. The question of pension rights is worth mentioning. If a divorced husband is in a pensionable position, on his death his second wife will avail of the pension because she is the dependent spouse. The same will apply in the case of a husband who is in receipt of a social welfare benefit because the second wife will be the dependent spouse according to the constitutional amendment.

The Minister for Justice, Deputy Dukes, in his speech in the Dáil on Second Stage made the point that as regards the spouses, it will, of course, be a consequence of divorce that a person who has ceased to be married to another by reason of the dissolution of the marriage, would not be regarded as the widow or widower of the other for the purpose of succession when that other person dies and would lose rights as a result.

It seems to me arising from that that the divorced wife will lose all her rights of her succession. She will no longer be his spouse for the purpose of the Succession Act, 1965. There are many conflicting opinions on this. Different opinions have been put forward by eminent legal people on this issue.

If the eminent legal people disagree on this, how is the ordinary person in the street to decide? The same applies to the clause in the Bill that states that the marriage has failed. There is a great deal of confusion on this matter even among those people who support divorce. What exactly does "failed" mean? Is a "failed" marriage one that has not been consummated? If a husband and wife with a small family are separated for 51 weeks of the year but come together at Christmas will that be classified a "failed" marriage? If there is no family of the union can it be said that it is a "failed" marriage? This has not been satisfactorily clarified. It has even been mentioned that the people who will decide this issue have different opinions on this matter.

If the referendum is defeated will all these extra helps for marriages that are not stable be provided? I am referring to the courts, the age for getting married, conciliation and mediation. Will the nullity laws be updated? Many questions have to be answered. Passing the Tenth Amendment of the Constitution will mean that every marriage commitment will be weakened. I fully accept that there are many difficult, sad and cruel cases. Many people will find it difficult to decide which way to vote in the public good.

We are dealing with a very important matter. There are many sad cases and many marriages that have broken down irretrievably. I would love dearly if some way other than divorce could lead them to a happier life but I firmly believe that divorce will bring far more injustices and hardships. I would love dearly to find some arrangement which would not have such devastating consequences for society and the stability of marriage and family members. It would be my observation, having considered all of these important factors, that divorce brings with it more harm than good. I believe it would have a devastating effect on the constitutional rights and the protection of every married family in this State.

An Leas-Chathaoirleach

Before I call Senator McGonagle, the Minister wants to intervene.

Thank you for allowing me to speak. I do not intend to intervene in the debate but I understand that this morning at the opening of the debate and at one or two points during the day Members of the House indicated that they had felt I was discourteous to the House in not being here this morning to introduce the debate. I can understand their feeling. The reason I was not here to introduce the debate was that I was addressing the annual conference of the Prison Officers' Association in Mullingar, a commitment that pre-dates the publication of this Bill and the timing of the debate. I apologise.

It happened last week with somebody else.

It happened last week with somebody else who was addressing the annual conference of the Prison Officers' Association. I apologise to the House for that. Looking back over the history of the last couple of years, the House might be disposed to forgive me for not being present here this morning.

All is forgiven.

I do not intend to spend a great deal of the time of the House in addressing this subject because so many words have been spoken and written about it that the Irish people must now be well informed. It brings me back to a social study conference I was addressing — some of the colleges in Galway — where there was a mixed audience of clergy and lay people of all the Churches in Ireland. I remember very clearly pointing out that the reason I was against this Article in the Constitution, which apparently gives special consideration and position to the Catholic Church in Ireland, was that as its nature was sectarian it should be deleted from the Constitution — I am talking about the sixties.

I felt that Article would have to go eventually because of the sectarian character of the denial of access to divorce legislation, a denial that reduced the kind of civil liberty and human rights that all the children of the nation should be cherished equally and so on.

I am very privileged and I feel very gratified to be standing here when the death knell is being sounded of the denial of access to divorce legislation for those who want divorce. It is not for me to tell others my moral plan that to divorce one's partner is a mortal sin and an obscenity. I am not their judge. That is a matter for them and their conscience. The Irish people ought to be complimented that out of the struggle for independence over a short time — 70 years is a short time in the life of any nation — the elements of liberal democracy are there. We are and have been proceeding to a more open, democratic society and the good fruits will eventually appear.

I referred to the idea of nobody having a right to tell a wife she should not divorce her husband or a husband he should not divorce his wife. I am reminded of the Islamic fundamentalists, especially in Iran and some parts of the Sudan, who have no inhibitions about imposing part of their religious code on people who do not want it — even Christians. That, I am afraid, is the position as long as the denial of access to divorce legislation exists. That is an imposed sectarian situation which no liberal democrat or socialist could accept and that is the basic reason why the Labour movement and especially the Labour Party and I feel gratified that, in fact, this necessary reform is coming in. I trust it will be successful.

The purpose of the Bill is to enable the people of Ireland to decide on whether the constitutional prohibition on the enactment of divorce legislation should be removed. A grave responsibility rests on the Government, politicians, leaders of public opinion, the media and the clerical spokesmen of the various Churches to present a fair and accurate picture so that the people are reasonably well informed on the matter.

I intend to keep to the broad brush approach. I should not make the mistake of going into the details of the proposed divorce legislation, although the type of legislation must be known to the people. I am intrigued by some speakers who obviously are sincerely against divorce but who at the same time, draw attention to where the divorce legislation could be perfected. That is inconsistent. One cannot say, on the one hand, "I am against divorce for the following sincere reasons" and then go on to try to have the legislation perfected. One cannot do those two things at the same time.

I want again to compliment all the speakers up to the moment for a dignified, calm, unemotional approach to this very sensitive and delicate problem that we have and which is on the increase. Irretrievable breakdown in a marriage is a serious thing. On a matter of such sensitivity and delicacy, it is only right and proper to ask that public debate and discussion be carried out in a civilised and intelligent manner and that is being done.

False claims and exaggerated posturing should be avoided in the interest of all concerned, more especially in the interest of those people directly affected by the denial of access to divorce legislation, those unhappy people. The whole question should be approached in a compassionate and caring way and whatever way the Irish people decide, for or against, should be accepted with good grace.

It is an unfortunate fact of life that marital breakdown is on the increase in Irish society. Quite clearly, the effects of marriage failure on the affected partners and the children cannot be ignored by serious legislators. That is the crux of the problem. Legislators cannot ignore the interests of the children, say, of a second union as long as there is no divorce legislation. That is precisely why the Government have acted. The decision to introduce divorce legislation and to inform the people of the type of such legislation is a display of maturity and responsibility in accepting this twentieth century Irish nation. By that I mean the Government have undoubtedly faced the problem honestly and fairly in the interests of the common good.

I compliment the Government on the way they have conducted this whole affair. Consultation with the groups and people concerned — including the various Churches — was undertaken to obtain a clear understanding of the issues and the interests involved, but no one can claim, therefore, that their viewpoint was not heard. Nevertheless there are for and against stances on the matter. The Irish people, of course, will have the final say, the final democratic say in the proposed referendum on the constitutional amendment. When the Irish citizens vote, there certainly cannot be complaints about lack of information. The problem is to sift the chaff from the wheat. There will be proper information and sometimes misinformation and a little bit of bending the truth for political purposes. This divorce issue should not be made a political football. I am glad that it has not taken that appearance up to the moment.

The people will have received by then thousands of words of advice, spoken and written. I trust that the decision in favour of the introduction of divorce legislation will truly reflect the maturity and the wisdom of the Irish people. I am fully convinced that the question or access to divorce legislation is one that is best answered by simply saying that it is a human right. It is a question, is it not, of civil liberty as well? I am aware that the European Court of Human Rights people have decided that it does not fall within that definition. Frankly, I cannot understand this decision. The question of availing of divorce is primarily a matter for the individual or the individuals concerned. After that comes the responsibility of the legislators to see to it that the hurtful consequences for family life are reduced, if not eliminated.

The matters of succession rights are considered and the care of any children of the marriages are properly enshrined in law. That is the responsibility of legislators in any country. Initially divorce is a human problem, a matter of conscience.

The denial of access to an escape route from the unhappy environment is a denial of human rights.

Reference has been made from time to time in relation to legislation and other changes proposed in the Republic as to the effect on the people of Northern Ireland, expecially the Unionist people. Let me say quite clearly that it is a good and healthy exercise to democratise all our actions on the only proper basis — fair play and justice. It follows that every endeavour should be made to harmonise our legislation and democratic advances with those in Northern Ireland, but this qualification is necessary: harmonisation, good in itself, calls for action on both sides. The action has to be seen and the movement and full democratic dress be discernible. Having said that, I am not unduly concerned that one of the sides seem to require some assistance to progressive movement. That is the Northern Ireland side. Given time, patience and goodwill, the Northern Ireland people will move in the right direction.

On the matter under discussion, divorce, I would ask the people in the Republic to note that the Northern Ireland people have had access to divorce for many years. I have not seen any evidence of the awful calamities that some people are predicting if we have divorce in the Republic. I have not observed serious breakdown in morality or in family disorder or any other unhappy features related to divorce. Nor is divorce talked about very much in the North. Any talk I have heard about divorce arises our of the present debate in the Republic.

It is argued, and points of view are expressed from time to time, that when we are bringing in legislation, we should be careful, first, not to offend the people of the North and, secondly, to take away anything that will appear to be offensive. That is not good enough for me. Any legislation that is brought into the Republic must be good in itself. It is a secondary consideration that it might appear to be good to the people of Northern Ireland, but that does not make it a primary consideration. Of course, if divorce comes in in the Republic, that will be a good thing. It will be nearer harmonisation, but it is not to be taken that that is why we are doing it. It will help the situation. There is no doubt that, but we are bringing it in because it satisfies the common good and is socially required and necessary. I want to reiterate that. I have said this before. You cannot have a situation where the Northern Ireland people stay back and say, "when you perfect the State down there we will join you." My reply to that attitude is, "come in and help us to make it perfect. Come in and help us in an Irish Parliament to make a perfect state in the Republic or in a united Ireland or whatever new form this island is to take." That is the realism of the situation.

It is suggested from time to time that it would be good to have divorce in the Republic because as long as we do not have divorce legislation there is a major obstacle to some form of eventual unity and understanding. That is fair enough. It would be rather anomalous for the Ireland of the future to have divorce in the North, which has not upset life there, and not to have it in the Republic. It would be rather queer to say the least of it.

It is a simplistic approach, of course, but I think I have dealt sufficiently with that, under that kind of examination. Clearly, I would say that the closer we get to a position where there are fewer and fewer areas where the Northern Unionists can point to unacceptable elements in our society in the Republic the better, because we will be moving nearer to the identification of the remaining obstacles to unity and understanding. It may well be that the Northern attitude could be, "we do not care how perfect your society is, we are still not joining you". They will probably say that. They have said it. What we do here must be on the basis that it is the right thing to do. That will stand on its own merits and if it is good and we can bring about a situation in the Republic of liberal democracy, fair play and justice, eventually there will be understanding and unity on this island. As a whole. However, that must remain a matter of secondary consideration. The primary objective must and should remain the common good. It is socially necessary to have and bring about conditions of decent civilised living in the Republic of Ireland.

In the interest of the people who desperately need access to divorce legislation and in the interest of harmonisation of our legislation North and South, I commend this Bill and congratulate the Government on it.

Most people will accept that there are very few marriages in this country which do not experience difficulties at some time. In the vast majority of cases these difficulties are overcome and the marriages in question could, for the most part, be regarded as extremely happy and successful. Unfortunately, however, in some cases the difficulties continue, the problems increase and, eventually, the marriage breaks down. We are told that the incidence of marital breakdown is increasing. It seems to be generally agreed that this is so. The exact number of marriages which have broken down is, however, a matter which is hotly disputed. Some of the figures which have been mentioned during the course of this debate are, I feel, greatly exaggerated. The Joint Committee on Marriage Breakdown referred to the unavailability of comprehensive and detailed statistics on marriage breakdown in Ireland. In their report at chapter 6, page 31 they state:

The committee has been unable to have access to any source which can delineate objectively the total number of persons whose marriages have broken down.

They went on to state that:

The committee is of the opinion that any future census should seek to ascertain precisely the incidence of marriage breakdown as manifested by separation or desertion.

This recommendation has been implemented in the recent census. We are told that the purpose of the amendment of Article 41 of the Constitution and of the legislation proposed by the Government is to tackle the problem of marriage breakdown. However, while we know that the problem exists we do not know the extent of it. Therefore, in my view, it would have made sense to wait until the exact extent of the problem was quantified before considering how it might be remedied. In introducing this measure at this time the Government were motivated to some extent at least by political considerations. The Bill to amend the Constitution is now before the House and we must consider very carefully all its implications and aspects.

It is proposed to delete from the Constitution section 3.2º of Article 41 which reads as follows:

No law shall be enacted providing for the grant of a dissolution of marriage.

It is proposed to replace the deleted subsection with a new subsection 2º which will read:

Where, and only where, such court established under this Constitution as may be prescribed by law is satisfied that —

(i) a marriage has failed,

(ii) the failure has continued for a period of, or periods amounting to, at least five years,

(iii) there is no reasonable possibility of reconciliation between the parties to the marriage, and

(iv) any other conditions prescribed by law has been complied with, the court may in accordance with law grant a dissolution of the marriage provided that the court is satisfied that adequate and proper provision having regard to the circumstances will be made for any dependent spouse and for any child of or any child who is dependent on either spouse.

Simultaneously with the publication of this proposed new subsection which is contained in the Tenth Amendment of the Constitution Bill, 1986 the Government also published a statement entitled "Statement on Government's Intentions with Regard to Marriage, Separation and Divorce". Sections 2 and 3 of that statement read as follows:

2. The purpose of this Statement is to describe in broad terms the type of divorce legislation which the Government would submit for the consideration of the Oireachtas if the proposal being put in the Referendum is approved by the people. That legislation will be designed to ensure that divorce will be available only in limited circumstances where a Court is satisfied that the marriage has failed and that the failure has continued for a period or periods of not less than five years, and that adequate and proper provision, having regard to the circumstances, will be made for a dependent spouse and for any dependent child of either party to the marriage.

3. The statement also sets out proposed changes in the arrangements for marriage and for judicial separation that will accompany the legislation mentioned in the previous paragraph.

The statement then goes on to detail various proposals for change in relation to such matters as judicial separation, the establishment of family courts and the making of financial orders. There is then a section dealing with the form of divorce legislation which the Government are contemplating if the amendment is carried. The document then outlines further proposals relating to the raising of the minimum age of marriage, the introduction of a minimum period of notice for marriage and changes in the law of nullity. It is not, however, pointed out that all these proposals for change with the exception of the divorce proposal could be implemented without any change in the Constitution. I am convinced that the whole idea was to give the opposite impression, in other words, to convey to people that the introduction of these reforms which many people consider desirable required the amendment of the Constitution, when this is not the case.

The changes outlined in relation to judicial separation, the establishment of family courts, the making of financial orders, the raising of the minimum age for marriage, the introduction of a minimum period of notice for marriage and changes in the law of nullity could all be introduced without any change in the Constitution. If the Government were genuinely concerned about the problems which these reforms would address they would have been more honest to say to the people: "These are reforms which have been recommended by the Law Reform Commission and by the Joint Committee on Marriage Breakdown and we propose to take the necessary action to implement them". The Government could then go on to point out that divorce legislation could only be introduced if the Constitution was changed, that is in the event of the amendment being approved in the Referendum.

I am satisfied that the other proposals were intended as the sugar coating on the pill and that they were all lumped together with divorce in the document to which I have referred for the sole purpose of swaying the people to support the proposed change in the Constitution. Those of us who are Members of the Oireachtas have received the Tenth Amendment of the Constitution Bill and the document outlining the Government statement. However, the vast majority of people in the country have not seen either document and have to rely entirely on the media for clarification of what is proposed. In every debate and discussion I have heard and in every article I have read all the proposals to which I have referred are dealt with in the context of the debate on the proposed constitutional amendment. This has created an enormous amount of confusion and I would hazard a guess that the vast majority of people have no idea of exactly what they are being asked to say "yes" or "no" to in the proposed referendum.

I believe that what has happened on this occasion is unprecedented and is contrary to the spirit of section 4 of Article 46 of the Constitution. This Article deals with the procedure for amending the Constitution. The Article in question states:

A Bill containing a proposal or proposals for the amendment of this Constitution shall not contain any other proposal.

Commonsense would dictate that the reason this section was incorporated in the Constitution was so that no extraneous material or matter could be introduced into any proposal to amend the Constitution which would compound or confuse the issue or be likely to influence the outcome of the subsequent referendum. I accept that the letter of section 4 of Article 46 has not been breached but I am equally satisfied that the simultaneous publication and issue of the Government statement was a blatant breach of the spirit of that section. It should not have happened.

The type of divorce legislation which the Government state they would introduce in the event of the amendment being carried is not very relevant either to this debate. The reason I say that is that any legislation can be amended after a very short time. I am not suggesting that the initial legislation which will be proposed in the event of the Constitution being amended will not be along the lines set out in the Government statement: I accept that it will. What I am suggesting, however, is that once the Constitution is amended it is inevitable that in due course legislation will eventually be introduced which will be as liberal in relation to divorce as the amended section will permit. I say this because it is inevitable that pressure will continue for the liberalisation of any divorce laws which the Government decide to introduce. This pressure will persist until the laws are liberalised to the maximum extent that the Constitution will permit. When that happens the likelihood is that the lobbying will then build up once again for a further amendment of the Constitution or for the repeal of the section in question.

Therefore, it is important that this debate should concentrate on the wording of the proposed new subsection and on the types of legislation which this wording would permit. Members should not allow themselves to be sidetracked into a debate on the Government statement or on the legislative proposals contained in that statement. The fact that there is a five year separation precondition in the proposed leglislation as outlined in the Government statement is really a red herring in relation to any debate on the implications of the wording of the proposed amendment. If this precondition is incorporated in the initial legislation, it can be varied or even omitted in any subsequent legislation.

The experience in every other country which has introduced divorce legislation with a separation precondition is that the period of separation has been progressively shortened. In several European countries divorce is available after one year's separation. The only thing that is absolute in the wording of the proposed amendment is that a marriage must have been in existence for five years before it can be legally dissolved. Everything else that is contained in the proposed new subsection is subject either to the discretion of the courts or to whatever legislation may be introduced from time to time. Therefore if this amendment is carried marriage is no longer a legal commitment for life but a commitment for a period of not less than five years.

For almost 2,000 years western society has accepted that marriage was a commitment by two people to each other for life. In many countries that understanding of marriage has been undermined by the introduction of divorce and the progressive liberalisation of the divorce laws. Ireland of the future, to have divorce in the country people have to ask themselves is whether they wish to discard the definition which regards marriage as a lifelong contract and to replace it with a new definition which sees marriage only as a contract for a period not less than five years. To do so would represent a radical change in the existing situation as regards marriage. Since the family is founded on the institution of marriage such a change would have enormous implications for the family. Experience in other countries has proved that once divorce is introduced it is impossible to contain. Divorce based on irretrievable breakdown or the failure of a marriage — which is the word used in the proposed amendment — means that one partner can unilaterally decide to end a marriage. The facts are that two out of every five marriages in Britain now end in divorce, and one in every two in the United States.

Senator McGonagle referred to divorce in Northern Ireland. It is particularly interesting to study the divorce statistics in Northern Ireland and how the situation there has developed since 1970. In that year the rate of divorce was one in every 40 marriages. In 1975 this had risen to one in 25 and today there is one divorce in every six marriages. In every country where divorce has been introduced the experience is that it cannot be contained and the more readily available it becomes the more frequently it is sought. Those who argue that divorce can be contained are ignoring what the experience has been elsewhere, even in the USSR.The Irish Times of 4 July 1983 outlined the situation at that time in the USSR under the heading “USSR has one million divorces”. I quote from that article.

That is hardly a Catholic country.

It is a country where there is marriage breakdown, where there was an effort made to deal with marriage breakdown through the introduction of divorce. I will read what has happened there according to a Soviet sociologist. I quote:

A Soviet sociologist has revealed that there are almost one million divorces a year in the Soviet Union and asked whether the institution of marriage was not in danger of dying.

He further said in thePravda article as reported in The Irish Times that:

...between 2.6 million and 2.8 million people marry each year but the divorce rate was now close to 950,000. Unless people learn to take a more responsible attitude to family life the family as a unit was doomed. The high divorce rate which in European Russia is running close to 50 per cent took a heavy social toll. Every fourth adult lived alone and millions of children grew up without a father.

The article then went on to speculate on the possible causes of such a high rate of marriage breakdown and concluded as follows:

Pravda insists that the family had to remain the basic social unit which taught children values and provided a firm basis for mutual happiness among parents. The paper said it was possible nowdays to bring up children without a father but the psychological role of the complete family was more important than ever before. The paper spoke of the official measures now being taken to strengthen the institution of marriage and prevent its breakdown. These include marriage guidance services, an increase in family allowances, a stepped-up campaign against male alcoholism, sex education in schools and sexual counselling for couples in difficulties.

In the USSR it would appear that divorce has caused more problems than it has solved. This is nothing new. The fact is that the problem which is used as the justification for the introduction of divorce, namely marriage breakdown, is greatly exacerbated by the remedy which is supposed to deal with it. The introduction of divorce will not solve the problem of marriage breakdown. It will create a whole plethora of new problems.

In any divorce situation where there are children involved, they are the ones who suffer most. There is incontrovertible statistical evidence from every country in which divorce laws operate that the children of divorced parents are several times more likely to suffer from psychological or emotional problems than children who come from a stable home environment. It is also acknowledged that in countries where divorce is available many children suffer from the fear and worry that their parents' marriage may end in divorce. This in turn can result in behavioural problems in the case of such children.

We must not forget or ignore the fact that if this amendment is carried an increasing number of children in this country will be subjected to the trauma of witnessing the break-up of their parents' marriage and the divorce and remarriage of possibly both parents. Is it any wonder that so many children elsewhere crack up in such circumstances? Will the situation be any different in the case of Irish children? While children are the chief casualites of divorce there is also much evidence that women too suffer greatly as a result.

I should like to refer to a recent study on divorce entitled "The Divorce Revolution — The Unexpected Social and Economic Consequences for Women and Children in America." This study by a sociologist at Stanford University, California, was published by the Free Press, New York. She spent ten years on her research. She sampled 2,500 court case records and interviewed hundreds of lawyers, judges and divorcees. She found that no-fault divorce, which is the type of divorce that would be introduced if the amendment is carried, is the cause of the impoverishment of both wives and children in the United States. She found that on divorce the standard of living of children and ex-wives decline by over 70 per cent while the standard of living of husbands actually improved. She also found that in the United States more than eight million women now raise children without the father's domestic presence and one-third of them are officially classed as below the poverty line.

Millions of fathers avoid payment of alimony whether they are rich or poor. From 60 to 80 per cent ignore court orders failing to pay nearly $4 billion annually. She concludes that even if all husbands paid all the money ordered by the courts 93 per cent of divorced mothers and children would still be living below the poverty line. In Ireland as in England and the United States it is women and children who will suffer most as a result of the introduction of divorce. The hardest hit will be mothers with young children. The succession rights and the legal protection in relation to the family home which spouses and children have at the moment under the Succession Act, 1965, and the Family Home Protection Act, 1976, will be considerably diluted, if not totally eroded, if divorce is introduced. These are all factors which people must take into account before making up their minds on how they will vote on the proposed amendment.

In this context I want to refer briefly to the provision in the proposed amendment that the court be satisfied that adequate and proper provision, having regard to the circumstances, will be made for any dependent spouse or for any child of or any child who is dependent on either spouse. I do not believe that this provision gives any worthwhile, long-term protection to the individual for whom it is intended to be a safeguard. The court in arriving at its decision in relation to what is proper provision can only have regard to the circumstances which obtain at a particular time. These circumstances could change overnight as a result of illness, accident or some other factor. Therefore I do not believe that the particular provision gives any worthwhile long term protection to the individuals to whom it refers.

In the final analysis the question we should ask ourselves is what effect the introduction of divorce would have on the quality of life in this country and whether or not society would be better or worse off as a result. It is not good enough to say that divorce will solve the particular problems of a particular individual or a particular couple, irrespective of how much we sympathise with that individual or that couple on the situation in which they find themselves. We must try to anticipate what its effects would be on society as a whole. We must ask ourselves to what extent the problems which are used as a justification for divorce could be alleviated or ameliorated by the introduction of the various other provisions outlined in the Government's statement.

I must conclude that, on balance, the introduction of divorce would not be in the best interests of our society and that the family unit on which society is based in this country would at the end of the day be worse off. I believe that the people in the referendum will support that view.

I welcome this Bill for a variety of reasons on which I intend to expand during the course of my contribution. I do not wish to spend my time this evening repeating a lot of what has been said by others during the day, some of which I have been fortunate enough to be here for. I think the general standard of the debate in this House has been excellent. There has been a great deal of preparation given by Members to their contributions which have been reasoned and carefully approached. I also think that the Government are to be congratulated on taking on a measure which has become one of great importance in our society in order to remedy the problems of marriage breakdown. I am prepared to accept that Senator Mullooly has to some extent got it right when he says that we do not know the numbers facing marital breakdown problems today. It is put at between 50,000 and 70,000 but certainly a considerable number of people are caught in the difficulties of marriage breakdown and it is an increasing problem. But to suggest as has been done that this is a rushed measure, that it is a measure that has been taken on for political reasons rather than for reasons that have been carefully weighed and measured by the Government of the day is, I think, to cast away the recent history of how this matter has been looked at. We have, for example, the fact that the New Ireland Forum spent some time dealing with the question of Church-State relations in regard to matters that had a bearing on the public morality area and we had, of course, the very definite views of the report of the Joint Committee on Marriage Breakdown which went into considerable detail in looking at the problems that we face in this area. I think it is not unimportant to remind my colleagues that this particular report came up with the unanimous view that a referendum should be held — certainly it was the majority view of the committee. Following that, we had the decision of the Taoiseach joined by the Minister for Justice here present this evening, to take the initiative in meeting the Churches and debating with them not just the issue of divorce but all the other problem areas confronting us in relation to marriage and which need to be discussed. The position is that we are now facing this measure and we are facing it at a time when it is necessary to do so.

All of these various moves from the New Ireland Forum to the Joint Committee on Marriage Breakdown, to the meeting with the Churches some time ago, have been in the direction of preparing the public mind for discussing the question of marital breakdown and the area of divorce.

One of the depressing aspects of the debate that took place in the other House was the extent of time that was given and the trouble to which Opposition speakers and particularly the spokesman on Justice went to deal with areas of apprehension that might be in the public mind following the debate, the economic considerations that were given a great deal of time in the course of that debate. I do not think that the economic considerations in this area are as large as some people would like to think. We have, after all, been dealing for a very long time with supports through the social welfare and tax code for split home situations, desertion and so on. These are nothing new. What is new, or certainly is growing into a very new problem, is the extent to which married couples are facing difficulties. This is being felt in every village. Certainly, it is being felt by most families and the need to come up with a remedy is all too clear. I think that it is necessary to concentrate on a little more compassion for the human tragedy that faces people in that situation, not just for the immediate couple concerned but obviously for the dependants of that marriage, the children, those who are most vulnerable in that situation. Are we to say to them that we are not as a country, or an Oireachtas able to offer them any compassion, any remedy?

This is something we have to proceed with in a courageous way and the State is doing so now. There is a well known saying: "If you want to know me, come and live with me". This is an age-old catch-phrase which is understood around Ireland. There is a great deal in it. Many of the problems of marriage arise because people did not prepare for marriage. Over the years insufficient numbers attended courses to prepare themselves for their future relationship with their spouse. I should like to quote sections from the Lenten Pastoral of 1986, Preparing for Marriage issued by Archbishop Kevin McNamara of Dublin. Dealing with the importance of pre-marriage courses it said:

Couples sometimes enter marriage with only a superficial knowledge of each other. Because they have enjoyed the period of courtship, they assume that they are suited to live together in marriage for the rest of their lives. Courtship and marriage are different, however. Courtship is wasted unless the couple use the time to make sure they have the qualities to live together in harmony as husband and wife.

It occasionally happens that a couple doing a pre-marriage course discover that they do not know each other as well as they had thought. This can sometimes result in the proposed marriage being postponed.

Further on under the heading "Warning signs" in the same Lenten Pastoral — written admittedly, before the proposals on marriage and divorce relating to this constitutional amendment were known — we read:

The prospects of a successful marriage are also put in question in other ways. As one of our Regional Marriage Tribunals has warned: "In courtship there are stop signs, accident black-spots ! Heavy drinking, heavy gambling, drug addiction, crime, violence, infidelity, tantrums, jealousy, psychiatric history — unless you want to be a martyr, take avoiding action today and do not wait until tomorrow. Do not imagine for a moment that you can change your partner in marriage."

I often wonder when I read that kind of contribution on the problems facing those, not just preparing for marriage, but those involved in a difficult marital problem, what kind of compassionate and Christian approach is embodied in the type of language that is used. There is a lack of human insight. A significant number of couples who face the difficulties we are discussing at this time feel that not just the Archbishop in question but other members of the Hierarchy who speak in this way do not understand the kind of difficulties that can arise after marriage which were not all that clear in the period before the union. It is all too evident that couples get married and later discover that one of the partners is violent.

Recently, I met a young girl who got married 18 months or so ago. She discovered not alone that her husband was violent, and was prepared to beat her up and her mother also, but that he had a history of armed robbery which she was unaware of before she got involved in her relationship with him. Mental cruelty can be spurred on by heavy drinking or drug addiction. Not all of these signs are clear before the couple decide to get married. One can be blind to the failings of the other and may not realise in time the extent of the problems which are likely to arise.

We have to show compassion for the mistakes people make and the difficulties people can get into, rather than turning our minds away from human error and offering no remedy. The proposal contained in this amendment to allow the possibility of divorce after a failure has continued for a period or periods amounting to at least five years is perfectly sustainable and reasonable. It should not be treated as opening up the country's laws to divorce on demand. That is not proposed in the legislation. In a reasonable and balanced way it recognises the human dilemma in which people find themselves. I hope there will be a positive approach to this referendum, in the debate over the next few weeks and that we will have a result which will favour a change in the Constitution in this area.

As a member of this House I regard my task not only as a great honour but also as a serious duty to be carried out very conscientiously. I welcome the holding of a referendum on divorce. It is only right and proper that our people should be given the opportunity to decide the matter democratically and, I hope, in a thoughtful and responsible manner. May I emphasise that all law must aim at the common good, at what is best for the majority of the people. Our Constitution does this magnificently in Article 41:

1º The State recognises the Family as the natural primary and fundamental unit group of Society, and as a moral institution possessing rights, antecedent and superior to all positive law.

2º The State, therefore, guarantees to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State.

Article 41.3.1º reads:

The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

We are here this evening teasing out the various problems to enable us to get the best possible Bill to present to the people to enable them to decide. The people are being asked to remove this noble and ennobling Article totally and completely from the Constitution and to substitute a new Article which will do nothing to help the common good. It will do grave and lasting harm. I should like to highlight this point as I do not see it receiving any prominence in the debate so far.

I have been following the debate closely inside and outside the House. One thing which has amazed me is that so many have said or written so much about marriage and divorce without stating clearly what is meant by either word. I shall try to define them. First the standard and still accepted legal definition of marriage is that of Lord Penzance when he said: "I conceive that marriage may be defined as the voluntary union, for life, of one man and one woman, to the exclusion of all others." Secondly divorce — and let us be quite clear on this — it is permission from the State to remarry and, may I add, to remarry again. Those who favour divorce tell us it is necessary because of the high rate of marriage breakdown in our country. It is, of course, sad that there should be so much breakdown. But, even on the highest estimate of marriage breakdowns submitted to the Joint Committee on Marriage Breakdown, which was 6 per cent of all marriages, we have the lowest breakdown rate in the whole of Europe. If divorce were the answer to this problem then we should have the highest rate of broken marriages and countries that have divorce legislation should have the lowest breakdown rate. The opposite is evident for all to see. In our neighbouring island, Great Britain, the number of divorce petitions in 1920 was less than 3,000, but in 1981 this figure had risen to 200,000.

Here let me draw attention to an expression which has been attacked by the Taoiseach, by the Minister for Justice and by a lady Deputy in the other House who said that it was degrading and insulting to Irish women. The expression was that used by Deputy Woods in the Dáil when he described divorce as "a Frankenstein Monster". Those who have attacked the phrase do not know the history of divorce legislation, because this phrase is over 130 years old. It was quoted from no less a person than Lord Campbell, who was responsible for introducing the first Divorce Act in England in 1857. A few years later when Lord Campbell saw the increase in the rate of divorce, and their increases were still comparatively small, he said: "I have been sitting for two days in the divorce courts and, like Frankenstein, I am afraid of the monster I have called into existence."

The Second Vatican Council called divorce "a plague". The council's document was drawn up by bishops from all over the world and so it reflects a world wide judgment on the evils of divorce.

In spite of what the Taoiseach and others have been trying to argue, divorce legislation, no matter how limited, alters substantially what has been the universal understanding of marriage as a lifelong union. It has been claimed that a man or woman has the right to remarry. That could only be true if one changes one's basic understanding of marriage. Divorce, of its very nature, is designed to eliminate the understanding of marriage as being a union of one man and one woman for life. It is worth noting that the Royal Commission on Marriage and Divorce in England stated:

The Western World has recognised that it is in the best interests of all concerned — the community, the parties to a marriage and their children — that marriage should be one partner and that it should last for life. It has also always recognised that owing to human frailty, some marriages will not endure for life, and that in certain circumstances, it is right that a spouse should be released from the obligations of marriage. They are, and always have been, differences of view as to whether in such circumstances the marriage tie should be dissolved and the parties set free to enter into new marriages, or whether the parties should merely be legally separated without dissolution of the marriage tie.

Having noted that, even then, many were resorting too readily and too lightly to divorce proceedings, the report continued:

Unless this tendency is checked, there is a real danger that the conception of marriage as a lifelong union of one man and one woman, may be abandoned. This would be an irreparable loss to the community. There are some of us who think that if this tendency continues unchecked, it may become necessary to consider whether the community as a whole would not be happier and more stable if it abolished divorce altogether and accepted the individual hardship that this would entail.

It is the duty of the State to protect in a special way those who are most vulnerable and least vocal in our society, in this context, our young children. We are introducing many new laws to protect our children. We could have all these laws enforced and then destroy those good effects by the introduction of divorce. Our bishops remind us that "none are more deeply affected by divorce than our children" and they add "whatever laws say about marriage, parenthood at least is lifelong. Parents are forever". There is much evidence of seriously disturbed children of divorced parents.

I should like to draw the attention of the House to one further statistic which is not generally known. Most second marriages in proportion to first marriages also end up in divorce. This surely shows the destabilising effect of divorce. In all the debates I have heard in the Dáil and Seanad nobody has highlighted that aspect. That surely speaks for itself.

The Bill has been presented to take the serious effects of the economy away from the media and the people who are in serious distress at present and who would give this Government another month's life because when the referendum is over there will be four months recession——

Recession?

——four months holidays——

Four years of a recession?

——and it will bring us up to the budget of next year. There is a ploy by the Donnybrook set; the national handlers have decided that this Government must be in power, whether good or bad, for the sake of keeping Fianna Fáil from getting back into power. I have every confidence that the people of Ireland will reject this Bill.

(Interruptions.)

This is not a Bill for the good of the family. The Minister is entitled to his opinion. He is entitled to interrupt when he wishes. I never interrupted any Minister here and will not in the future. This Bill is being brought before the unfortunate people of Ireland at a time when we have the highest unemployment level ever, the highest taxation limit ever, the highest crime rate ever. The people have had nothing but hardship for the last three or four years and are getting nothing every day but a dose of recession, cutbacks, doom and gloom, with nothing for the future. The Government are now proposing, in the form of divorce legislation, to take away the very foundation of our society, the very foundation of what makes us a great people here in Ireland.

We are the second last country in Europe not to have divorce and we should hold that position and be proud of it. The family in Ireland has got a special place and that place should be kept. Every family have their ups and downs but I would not like if my father or mother got a divorce and that I was the child who suffered. We have had problems in our home; everybody has problems. Everybody would like the love and affection of their parents and we know of the 6 per cent of mismarriages but I defy any politician or any parliament in the world to tell me of a better law than one that legislates for 94 per cent of the people satisfactorily.

The State should keep pace with the Church law because, when you are getting married, no matter what Church you are in, you have two ceremonies; you have a civil ceremony and a religious ceremony. The State recognises the priest or the vicar on that occasion as a witness to the civil ceremony. Why can the State not give a civil annulment if you can get an annulment whatever your faith?

We all know we have two or three different faiths in both Houses. We have proved ourselves to be an exceptional people in the South. We have all religious denominations working together, getting on together, in business together, in games together. In this beautiful part of the world one thing we can be proud of is the rock our family is built on. I have visited many countries. I know the disastrous effects of divorce. No profession is more plagued with divorce than the entertainment profession. In the end no one has respect for anyone. The suicide rate in divorce cases is way above that of people who try to survive and get on. We all know the early years are important I welcome the increase in the marriage age from 16 years to 18 years. It was essential. I deal with more young people, I would say, than anybody else in this House. Having massive experience all over the world, I believe this is the worst thing to have come before this House in the four years I have been a Senator.

I recognise that 94 per cent is a good percentage. I do not know of any legislation that has come before the House since I became a Senator that has had such a high success rate as Article 41 in our Constitution. The men who are dead and gone who have framed that Constitution have been commended at meetings I have attended over the past fortnight of all political shades and opinions. A member of the Government, who comes from Athlone, differs from the Minister, the Taoiseach and his Cabinet on this matter. I trust that the decent electorate of Longford-Westmeath will give a massive no vote to this in the referendum. I have never been too far wrong in elections over the past 20 years.

Councillors of all political persuasions have talked to me. Perhaps some of them thought I was a more liberal type politician, or a politician of the so-called media world. Many of my friends in the media thought I would be in favour of this. On occasions like this, I speak for the people I represent. I represent the family. As the father of a family I could not, in all conscience, support something because the media were for it. A certain minority speak very loudly in our society. I call on the silent majority to let themselves be heard, apart from the ballot box. At certain times looking at different articles in the media you would wonder whether you were living in America or in London.

We have seen massive victories in the European elections for Fianna Fáil, and the massive victories in the local elections for Fianna Fáil, and all these discredited journalists are on about the same thing: divorce must come; it is an absolute necessity because everyone is being crucified in their marriage and most marriages are not working. Most marriages are working.

I welcome the referendum. I am confident that the people will reject it. When it has been rejected we should update the State laws in line with the Church laws. I look forward to the Minister's reply to the question: if the Church gives a religious annulment why cannot the State do the very same thing? There are other aspects of this which have been teased out in the other House. What will it cost the State? I heard that the Minister said — and if he wants to correct me he may — £20,000 per divorce.

If a couple living in a local authority house — and many of our people are living in local authority houses, or a house with a mortgage, which 90 per cent of us are all living in — get a divorce, one of the parents will stay in the house and the other parent will have to get out. When one parent finds another partner and possibly remarries — and 70 per cent of them remarry — the State will be faced with having to house all these people again. We all know the cost of houses. It can be £35,000 to £40,000 depending on which local authority area you are in. These are the expenses the State will have to meet. This is going to cost the taxpayer. If we have not got the money to maintain our roads, which we all know are in a deplorable state at the moment, where will we get extra money to house those people? If you take 70 per cent of 60,000 or 70,000 people that is 40,000 people to be housed and 40,000 houses at £40,000 each amount to quite a sizeable sum of money. These are the arguments people are making to us as county councillors. How will the Minister finance this luxury for this 6 per cent for whom he is bringing in the Bill?

I do not know.

I should like to conclude by saying I am glad a referendum is being held. I hope that, for the future welfare of our country, the electorate, like me, will vote no to divorce.

I will try to avoid going down the road, pot holes and all, that Senator Cassidy went down. I disagree with his comment that the decision to hold this referendum was taken at the whim of some handler or some set from some part of Dublin or otherwise. This debate is an indication that it is much too serious for a whimsical throw away remark like that. This is an area of human misery. What, if anything, can the State do about it? The debate the public want to hear from us is whether or not it is the right thing to do. We would all dearly love to live in a society in which marriages did not break down. Thank God the vast majority of marriages do not break down, 90 per cent or more. That is an indication of the stability of Irish society. Of those 90 per cent or more that are still intact, none of us knows or presumes to know how many are in difficulty. Many people make an effort for the sake of their children. No matter what legislation is introduced in any area of social legislation, we must have regard for the rights of children. In the few words I will say on this Bill I will try to deal with the concerns I have particulary about children and their rights in the existing situation of marriage breakdown and how, in fact, this Bill can address itself to the problem. In the ideal society — if we were to call it ideal — of course, Senator Cassidy, only mature and responsible people would marry.

At 18 no one can be mature.

I presume people of 18 are now mature. The Senator is in show business, as he said so he should know.

Entertainment is the word.

Entertainment is right. There are people who are mature at 18, thank God. Marriage vows would be honoured until death by either partner. Alcohol, violence and all the inadequate personalities would not threaten the very basis of marriage.

Perhaps that will be included in the next Bill.

In the ideal society these things would not happen and mature people would not allow all these other things to happen. But, unfortunately, in the real world that we are living in, some people marry too young and they marry for the wrong reasons. They make decisions of another nature, which pre-empt a decision about marriage at the appropriate time and they marry for the very wrong reasons. The Catholic Church, rightly, advises against that kind of forced marriage nowadays, because it is the wrong reason to get married. That is why the Catholic Church — and many theologians — talk about a proper preparation for marriage and the fact that there should be proper notice to the Church authorities. In the real world, we have the problem of alcoholism, violence, immature personalities which all undermine this marital harmony we wish for and marriages, unfortunately, break down. What has changed, of course, is the attitude of the parties to a broken marriage. A generation ago — that is not so long ago — there appeared to be absolutely no alternative to an unhappy marriage but to grin and bear it and women, because of their economic dependence on their husbands, and because of their having usually large families, seemed to have no choice whatsoever. The fact that the couple remained together despite the miseries that may have been experienced by one or both partners, did not mean the marriage had worked. But many of them survived such marriages for the sake of children.

What has changed in recent times is that the parties to unhappy marriages are willing to part and are unfortunately prepared to form second relationships and have second families. That is the tragedy of our country. A public reprepresentative, meeting constituents every week in rural Ireland and in urban areas will know that that is the real problem. In spite of the Catholic Church, the Protestant Church and all other religious teaching, people still enter into illegitimate, immoral relationships, which have proved to be stable in cases, and have produced children. But it is still immoral. In addition to being immoral, it also creates other problems. It is illegal. These kind of relationships are outside the law and it is because of that — and perhaps only because of that — that sections of this Bill will rectify that situation. I do not know if that is a good or bad thing. I want to be clear about our understanding of these informal unions. The children are illegitimate. That is a horrible word, we do not like talking about illegitimacy. We are going to do something about describing children of these unions in a different way in another piece of legislation but at present let us talk about the illegitimate children of these unions.

The spouses, do not have, for example, the protection of the family home legislation. Dependent partners and children have no legal right to maintenance; a woman living with a man outside of marriage cannot obtain a barring order in the event of violence to her or her children. Illegal and immoral as it is, she still has no protection whatsoever and if that illegal union breaks up and the man deserts her, she is not entitled to deserted wife's benefit or allowances. If her partner dies she is not eligible for a widow's pension. Neither does she or the children have any succession rights to her partner's property. As the Oireachtas Joint Committee on Marital Breakdown pointed out, not only is the law being brought into disrepute in this area but the situation is also harsh, unnecessary and unjust to the parties in such relationships. That is the sort of legal morass we have to try to sort out. It is a pity that we have arrived at that stage in Ireland, a Catholic country, that we have to sort out that situation. I would dearly love to say that every marriage was happy and peaceful and content, producing families who went on to better things than their parents. That went on for a long, long time but stresses and strains have changed all that.

Senator Honan in her very considered contribution to this legislation talked about the attitude of the Church. She was not going to put on the record — even though she is a believer like myself — the attitude of the Catholic Church. I have no apology at all for putting it on the record. I believe in the Catholic Church. I am a practising Catholic.

I said I was, too.

I want to put it on the record of the House that I am defending the right of the Catholic Hierarchy to teach their flock the proper, moral teaching about marriage, that sacramental marriage is indissoluble. For me that is the Catholic teaching and I accept it. But this Bill is not talking about sacramental marriage. This Bill is talking about legal marriage for which the Church acts as an agent on behalf of the State and registers it in law.

Senator Cassidy suggested a civil annulment. There are Catholic annulments and civil annulments, expensive as they are. If you have a Church or State annulment, you are, in fact, deciding that the marriage never took place. What does one do then? What does the woman in that situation do? The State and the Church might have decided that the marriage never took place. That woman is disowned of any rights she might have had. Even in a miserable marriage, before the annulment, she would have been legally entitled to succeed to property and so on. But in the case of annulment, none of those rights applies. One is left high and dry, out in the open with no rights to home, to a pension, to children's allowances or to anything because the marriage has been deemed never to have taken place. That is the problem. To defend the religious teaching of the Church presents no problem whatsoever. I believe that Catholic marriages are morally binding and whether divorce is introduced, there can never be another Catholic marriage or a sacramental marriage again in the Church. Perhaps Catholics would want to know that. They cannot after a divorce be married again in their Church, although I believe it has happened that the Catholic Church has been involved in the marriages of persons whose first marriages were annulled by the Church. That is stretching it a bit too much and I disagree with that.

That is where charity comes in.

Right. The Labour Party have had a policy on this issue for a long, long time and not because it was popular. It was unpopular for a long time to have these views in Ireland. The only reason our party ever had a policy on this was not because we were anti-family or anti-marriage as I think all of us involved in the party have proved but — because we had a certain sense of compassion and understanding for the problems that, unfortunately, befall marriages of all religious denominations today. This is not just confined to the Catholic Church. We would not be human if we did not have problems. Christ was very compassionate. We have been told that He forgives all sins.

I have not heard any Church authority saying yet that if somebody actually votes for this or avails of the legal rights that this might confer, that in some way they would be excommunicated from the Church. Perhaps if it is that immoral, that is the line that should be taken. Then I would wonder what the people would think about it. Over the years the electorate in Ireland have proven themselves by their decisions to be a very considered electorate. They have changed the Government at times and rightly so. They have voted yes and no in referendums. We have often questioned them afterwards. They are questioning now the voting `yes' for entry into the European Community. That required a referendum and an amendment to the Constitution. Many people say they should not have done it, but the reality is at that time they considered it the right thing to do. I respected their view. At that time I did not even agree with it, but I respected it.

People's minds are becoming confused by listening to all of us. We have had an excellent debate; apart from a few little skirmishes here and there it has been an excellent debate and rightly so because it is a very important and sensitive area. It is very important to me personally. I believe in what I am doing. I believe in the institution of marriage, but there are some elements of doubt being spread around by people. I do not know for what reason. Senator McGonagle made an excellent contribution. He mentioned the North. If it is beaten the people from Northern Ireland will point to us as being in some way sectarian. If it is won I would say that it will not make any difference. I do not think it will influence them one way or another.

I think you are right there.

I do not think it will. They know exactly, and they will use it against us if we do not make the change, and if we make the change it will not make any difference to them. In that context you cannot win. Senator McGonagle was right. Either you do it for the sake of doing it, if it is right or you do not do it at all.

Naturally, the Government in their compassion would not have run off in haste, as they have been accused of doing, into a referendum, if they did not realise that there is a problem there. The problem of marital breakdown will not be sorted out by this referendum. There will still be marriage breakdowns. All it will sort out is the legal right to remarry and will give a legal status to all these other unions that have taken place. That is what is it all about. It is not the fact that anybody is anti-family or anti-marriage or anything else. The Minister who is present has been quoted, and in fairness to him it must be said that only part of the reference has been quoted. In a speech that he made, he said and I quote:

As regards the spouses, it will, of course, be a consequence of divorce that a person who has ceased to be married to another by reason of the dissolution of the marriage, would not be regarded as the widow or widower of the other, for the purposes of succession when that other dies and would lose rights as a result.

Everybody stopped there as if the first marriage is going to be disowned — the first marriage is over and the spouse has had no rights whatsoever. The Minister has been quoted out of context several times in the House today, and continuing he also said:

As part of the proposals outlined in the Statement which accompanied the publication of this Bill a Court granting a divorce will have new powers to make orders as to the ownership of property of the spouses. This will enable the Court to make some compensation for loss of expectations on the death of the other spouse, if that is appropriate. It is, of course, a normal feature of the standard form of separation agreement usually entered into by enstranged spouses that each renounces his or her succession rights on the death of the other. This is the case in practice even though it is not recognised, or perhaps realised by many of those who comment on issues raised by the Bill.

That is the total context of what the Minister said in his speech. If people quote they should quote it all. I presume the Minister in the latter part of his speech is referring to Schedule 2, 2º (4) (1) of the Bill itself and this is being written into the Constitution:

the court may in accordance with law grant a dissolution of the marriage provided that the court is satisfied that adequate and proper provision having regard to the circumstances will be made for any dependent spouse and for any child of or any child who is dependent on either spouse.

That is the section which reaffirms what the Minister has said and which is in the Constitution. So there is no danger whatsoever to people in previous relationships.

Which is or which will be?

That is, as I read it, will be the Constitution. Senator Mullooly made a comment that legislation would always be amended and updated and made as liberal as possible in line with what the Constitution will allow. Either we are satisfied with this constitutional amendment or we are not, because no law can be enacted that is not in keeping with it. It cannot be made liberal or less liberal or anything. This is it. I have some questions to ask. Nobody can ever be satisfied, because the Minister has available to him and to the Government, the highest legal opinion in Ireland. That is why I have reprimanded Senator Honan for casting a doubt on the Attorney General for what he might do, "this one in particular" was the way she put it.

One of yours. I am just worried about it.

I thought that was unfair and I defended the Attorney General because he is not here. He holds a constitutional office and if he is not here to defend himself, we should leave him alone. The Senator need not be one bit worried.

You have other occasions when you have need to be more worried than you have today.

Could you refrain from personalities.

I will leave it alone. I will just say that I am as happy about the calibre and the standing and the validity of the existing Attorney General as I am about any previous one and much more so. His advice was available and other legal advice was available about the exact words, how it would affect people and what would happen. I am saying that Deputy Cooney is entitled to his opinion. We are in a free country and he can express his views. We are all expressing our views. You expressed your views.

Acting Chairman

Could you refrain from personalities?

I should have mentioned the Minister, Deputy Cooney, and I defend his right to free speech as well. You are quite right. There are several people in Fianna Fáil and who had been in Fianna Fáil before. Let us all accept that people can state their views.

Acting Chairman

Both sides of the House have had enough lee-way on this now. So please continue the Bill.

I have a few questions I want to ask the Minister because he has advice available to him, that I do not have available to me. Let us presume a husband deserts his wife with two or three children for five years and goes to live in England. Suddenly we pass this legislation here. One would say immediately, that he would probably file for a divorce. The reality is that at present, although he is an Irishman, if he is resident in Britain, he can get a divorce over there which, unfortunately, our State recognises. It recognises the divorce of people domiciled in another country. That is an extraordinary situation. Somebody could have disappeared for five years — I will not name the town in case Senator Cassidy might think I was alluding to his own town — but still live in Ireland. Because the constitutional amendment is carried he could suddenly file for a divorce. His deserted wife has already suffered the stigma of being a deserted wife with three children. He can now start to petition for a divorce to regularise this other extraordinary relationship.

I would like to know what right the woman who is left at home has in that instance. Has she the right to say: "Why should I let him have his freedom? I stayed at home and reared the children and now he wants his freedom to regularise his new union. Have I any say in it?" Is this why we are going to legislate that there must be a legal separation for two years? If we are to have an obligatory legal separation for two years as part of the legislation, the Minister might tell me why it was not put into the constitutional amendment. In a legal separation, at least you have to have agreement between the two partners that there was a separation. I would not like that it might be found to be impracticable for some reason and that the person who was left at home with the responsibility had no right to object to the other person having his or her freedom legally. I have been asked these questions and it is my duty to ask them. Whether the amendment is passed or not, the rights of children are paramount, and children must have some legality in this situation, a legality children of other unions do not have at present.

I have absolute confidence in the Irish electorate. They are genuine people. They will ask a question if they are worried about something. I have asked several people whether they are voting for or against this and it is amazing how many different views there are on it. People you would expect to express the view expressed by Senator Cassidy are the people who say they will vote for it. Whatever the result is, let us welcome it. We should not be scoring points. This is too important. The people should have their say, make their decision, and let us abide by whatever the decision is. Let us not take advantage of the decision whether it is negative or positive. It would be great to have a decision by the people on an issue like this which has been talked about for so long. Only this Government had the courage to give them an opportunity to express their views.

I would like to speak on the amendment. I am glad to see the Minister here. We were disappointed he was not here to move the Bill this morning especially since the Government side are saying this is very important legislation. I was also disappointed with the way it was introduced. I want to quote from Volume 365, column 1445 of the Official Report of the Dáil on 23 April where on the Order of Business, Deputy Haughey, Leader of our party, said:

You will recall, A Cheann Comhairle, that yesterday morning, I raised with the Taoiseach the parliamentary programme until the summer recess. Let me return to that matter and ask the Taoiseach if, in view of the many reports in the media this morning, it is the intention of the Government to bring forward legislation in this term to amend the Constitution?

The Ceann Comhairle told him he was not in order.

Acting Chairman

I am sorry to interrupt you, Senator, but the business of the other House is not appropriate to this House and you cannot quote from the other House.

I often quoted before from reports in this House——

Acting Chairman

You cannot quote Deputies, but you can quote Ministers.

I am sorry I did not understand. I will give the Taoiseach's reply to that question. He said:

I have stated publicly that following consultations with the Churches I will be coming to the Government to present my conclusions. The Government have not taken any decision on the matter in question.

After further questions he said:

I have made no statement, other than the announcement I have just made.... I will not anticipate a decision of the Government in a matter of this kind.

He went on to say:

The matter is still under consideration. There are difficulties arising from problems of abuse and we are endeavouring to reconcile those problems with the importance of providing this facility.

Less than one hour afterwards the Fianna Fáil Party were informed through the Taoiseach's office that the Tenth Amendment of the Constitution Bill, 1986, would be printed and circulated that evening. The Taoiseach treated the House with contempt by not letting the House know he intended to introduce legislation, especially when the media had already made the announcement.

The Senator is criticising the Taoiseach for informing the Opposition at the earliest possible moment that a decision was made. It is a little bit impolite to say the least of the Senator to do that. The fact that the Opposition were informed immediately a decision was made is something in which he should rejoice. It is the proper courtesy to be extended by the Taoiseach to the Opposition.

The Minister might think that, but I think otherwise. The media knew the night before.

Acting Chairman

As I have already stated, the business of the other House is not appropriate to this House.

We have late sessions tonight and tomorrow night. The last time we had a late session was for the debate on the Family Planning Bill. I raised an Adjournment matter at 4 a.m. after that debate.

It is not the first time the Senator was up at that hour.

This is supposed to be legislation on a social issue but there are more important issues which we deal with, and we do not sit this late. Fianna Fáil have already shown their good faith in this matter by accepting the Government's decision in a non-political way. It is definitely a matter for the people and should not be made a political issue. It is regrettable that, in the course of this debate, a number of Coalition Deputies made it a party political point scoring issue and engaged in personal attacks. Can they not see that they are leaving themselves open to the accusation——

Did the Senator not hear Senator Cassidy a few minutes ago?

I am finding it very hard to hear. When are we going to get the new amplification and speaker system here? I brought this up yesterday. I am finding it impossible to hear what is going on.

Senator Kiely did not hear Senator Cassidy.

I am delighted I am of the same opinion as Senator Cassidy. I appeal to the Government parties to desist from these attempts to gain party political advantage from this issue. It should be above politics. It should be conducted in the responsible way it deserves to be treated.

The amendment has many important aspects and implications for the position of families and for the character and quality of our society. As citizens, we will have to weigh up many vital considerations in order to decide where the balance of the public good lies. Many sincere and conscientious views are held on this subject and are deserving of respect. While the timing of the referendum might have been better chosen, rushing through this legislation is not fair to the debate. There was a question on the census form about marriage breakdown and it would be appropriate to have the referendum after the results of the census are published in the autumn.

The issue going before the people will be whether marriage should remain permanent and indissoluble as a firm basis of family life and of society or whether it may be dissolved if certain conditions are met. The decision either way will affect the nature of marriage for everyone and not just those at present caught up in breakdown situations. If this amendment is passed it will mean that the partners in a marriage which may not be going well but which could be remedied, will be seeking a divorce. There is something in the amendment which will facilitate such cases.

Opinion polls are conducted on many issues as an indication of how people are likely to vote but they are not always correct. I hope they are right as far as the performance of the Government is concerned but I hope they are wrong on this issue. It is only after the referendum is held that the wishes of the Irish people will be known. The referendum is likely to take place on 26 June and Irish voters will once again have an opportunity to show the world they are going to keep our traditional values intact. There is no need to follow the trends of other countries. Ireland can continue to protect marriage and family life and, therefore, benefit the common good. We Irish are proud of our independence as a people, of our character and ability to be able to stand up against the world, and yet years after others elsewhere introduce something, we go for it and do it even after those who introduce it now realise they were wrong. Who is asking the Government to bring this in — a tiny minority? I wonder if this minority, using the power of the media, are going to be able to bring divorce proposals forward again and again by using the argument that since we are the only remaining country in Europe which has not yet introduced divorce, we have an obligation to do so as soon as possible. If that is the reason this country finds itself debating this topic it is unfortunate and reprehensible.

Experience in other countries has shown that once divorce legislation is introduced there is an increase in marital breakdown. In Northern Ireland in 1970 one in 40 marriages ended in divorce: in five years the figure jumped to one in 26 and in 1983 it was one in 25. At present, 70 per cent of divorces in Northern Ireland are granted on the basis of separation. This required period of separation is gradually being shortened so that at present in many European countries divorce is available after one year's separation.

Divorce legislation in Britain was introduced on the basis of fault such as adultery, cruelty or desertion. It can no longer be controlled because the condition of irretrievable breakdown is satisfied by one person deciding to live apart. Two out of every five marriages in Britain end in divorce. In the United States one in every two marriages end in divorce.

Irish people should not be fooled into believing that divorce legislation once introduced in Ireland will not follow the same trend as it follows in other countries. As sure as night follows day, it will. No matter what way it is controlled that trend will follow.

Is this what the Irish people want? A "Yes" vote in the referendum will open the door to the granting of divorce on a very liberal basis. Many people will be confused into believing that in voting "Yes" in the referendum they are voting to alleviate hardship in certain cases. This is not so. Passing the Tenth Amendment of the Constitution will mean that every marriage commitment is weakened. In the forthcoming referendum people will be voting to change the legal concept of the permanence of their own marriages or the future marriages of their children. This is very serious, before voting people should seriously consider the experiences of other countries and the likely probability that Ireland will follow the same road if this amendment is passed.

There is a lot of talk about the children of the first marriage. Under the Succession Act, 1965, children of the first marriage lose their constitutional protection under Articles 41 and 42 on the dissolution of the marriage and their inheritance rights would derive only from the Succession Act.

To go back to the case of a divorced wife who is in the situation of being a dependent spouse during the marriage the new wording in the Constitution proposed in the referendum states:

The court may in accordance with law grant a dissolution of the marriage provided that the court is satisfied that adequate and proper provision having regard to the circumstances will be made for any dependent spouse and for any child of or any child who is dependent on either spouse.

These words sound reassuring but what do they mean? For a divorced wife they could mean the difference between the standard of living to which she was accustomed or a life eked out of social welfare. In such cases the estranged dependent wife can use her renunciation of legal succession rights as a barring factor to obtain more generous maintenance terms. In the case of a divorce, the wife would have no bargaining power as she has no succession rights. However, the Government's point seems that the court will have the possibility of compensating for loss of succession rights. The passing of the referendum will not give this power but only later legislation.

No matter what improvements are made in the enforcement of maintenance orders we know that in practice many spouses will be left solely dependent on social welfare. The social welfare system is over-burdened at present. I am sure the money in the Exchequer at present is hardly adequate to meet social welfare payments. If this legislation is passed, there will be little hope of removing VAT from hurleys in the next budget.

That will never happen.

The DIRT tax will be increased from 35 per cent because the social welfare bill will be very much increased. Apart from its humanitarian aspects that development will have major financial implications for the Exchequer in the cost of the social welfare benefits.

Under the Family Home Protection Act, 1976, one spouse cannot sell the family home without the permission in writing of the other. In a case where the husband is the owner, the wife is protected from having the family home sold over her head. It seems clear, however, that a divorced spouse who was not the owner of the family home would lose his or her right to block the sale even if still residing in it. These are serious implications that will arise on the passing of this legislation for the family and wife of the first marriage. The first marriage is the marriage everyone, including the Minister, would like to see continuing. Whilst we agree there are many cases of hardship which we would like to resolve, the passing of this legislation will make it possible for people who have marital problems to opt out of marriage. It would be like trading in a car. The woman might go for a man with better means and have a better time. There is a danger that that could happen.

It is a fact. This is a serious matter.

It might not happen in Kerry or Limerick.

It is too serious to compare it with second-hand cars.

An Leas-Chathaoirleach

Senator Kiely to continue without interruption.

The Government are bringing it to that level. It is the men they will be treating like second-hand cars. There is a danger that this legislation will lead to something like this. It could have serious consequences for the social make up of this country.

I would like to quote from the proposed amendment to the Constitution which states:

Where, and only where, such court established under this Constitution as may be prescribed by law is satisfied that—

i. a marriage has failed,

ii. the failure has continued for a period of, or periods amounting to, at least five years,

iii. there is no reasonable possibility of reconciliation between the parties to the marriage, and,

iv. any other condition prescribed by law has been complied with.

Could it happen that in a year's time a condition could be prescribed by legislation which would make divorce more readily available under the terms of the first three paragraphs?

Not without further changes to the Constitution.

I would like an explanation of paragraph iv. It is very vague. Will it make things more liberal? This worries me and I am sure it worries many other people.

I hope this legislation will not be passed. This Government will be remembered for introducing two measures: making contraceptives readily available throughout the country and making divorce legal. It will be a sad day for Ireland if this happens at a time when unemployment is rampant. This legislation is unnecessary at a time when there are more pressing problems such as serious crime and increased taxation which the Government should be tackling.

I will not take very long because at this stage one is recycling many of the arguments that have been made in this House previously and in the other House. At the same time, there is a certain amount of justification for regurgitation of some arguments. While one respects the right to silence of individual Senators, individual Deputies, or public representatives, on such an issue this is one of the occasions when one would be inclined to withdraw that right. It is vitally important that every public representative pins his or her colours to the mast, points their supporters in a particular direction either pro or con, and has the courage of his or her convictions to stand up and say precisely where he or she stands on this issue.

The debate, by and large, has been an enlightened one in both Houses. I compliment the two partners in Coalition on having the necessary political courage, in the face of what was seen to be trenchant opposition from the combined mass forces, in some cases, of Church and would-be State authorities, to go ahead with legislation which is vital to underpin the family, family breakdown, irretrievable breakdown, the social hazards and the social malaise which have crept in and are so prevalent in society today.

One is amused by some of the arguments coming, in particular, from the Opposition. One of the arguments made by Senator Kiely, which is one of the facile arguments we always get at times like this when we have difficult legislation before us, was: why do the Government not address themselves to the pressing needs of the country? Just as I reminded Senator Kiely and his colleagues on the occasion of the passing of the Finance Bill, the Government have more than addressed our difficulties. There is tangible proof and statistical evidence that there have been significant breakthroughs in underpinning the main fabric of the economy and getting the components and nuts and bolts of the economy into relatively good shape in order to maximise the benefits of the present upswing in the international economic scene.

There is the other facile argument: why do the Government not address themselves to crime? It has been proven that the tide has turned in this regard and that crime is on the decrease in this city. The unemployment pattern has taken a downward swing. In the past two months we have managed to have a real decrease in the underlying levels of unemployment. Ploys, diversionary tactics, satellite arguments, and peripheral arguments like those are an impediment to getting to the core of the real argument and which is that we have a social, moral and political obligation——

Unemployment has increased.

An Leas-Chathoirleach

Senator Higgins, without interruption.

——to solve the real problems that confront us.

Senator Kiely mention that the traditional values of the nation would be undermined, that they are intact at present. Surely all of the evidence trotted out in this House, the Committee on Marriage Breakdown, in the media, phone-in programmes and women's programmes substantiates in considerable detail the conviction of this Government and the people in general that there is a crying need to do something about this problem.

We have the old argument of financial implications. I would respectfully suggest that when dealing with trauma, human suffering, human degradation, cruelty, marriage breakdown and the consequences thereof, financial considerations are of secondary importance. In the face of what we saw as the collective mobilised weight of certain politial parties and the trenchant opposition of the State, it took considerable courage to go ahead and put this referendum before both Houses, to get it out to the people and let them finally decide.

Without any political interference.

We have a moral obligation to face up to our duties. It shows a certain amount of cowardice if we have to be always prepared, nudged, elbowed and goaded on by the Supreme Court and that in itself is an indictment of us as legislators.

I am from a part of the country where roaring liberals are not very welcome. I do not represent that type of constitutency. I come from an area that is basically a conservative area and where we would like to think that the traditional values to which Senator Kiely would have us adhere so steadfastly are by and large kept. Yet in such a rural, conservative community one sees marriage breakdown and the consequences thereof. One sees irretrievable breakdown, the uncertainty caused, the doubt, the children involved who are unsure of their status, the grim financial circumstances, most of the suffering and cruelty, etc. It is evident in every townland in rural Ireland as well as every city.

I feel you are exaggerating.

I am not exaggerating. It is there. I am aware of it. I am sure it is prevalent in rural Limerick as it is in Mayo.

It is in Limerick.

Does Senator Belton know Limerick?

It is callous on the part of legislators that we do not face up to our obligations. Those of us who are lucky enough to have stable marriages should not, because of our stability, deny people who are in unstable situations a chance of having a second opportunity of marrying. It is taking "I am all right Jackism" to extremes, and unforgivable extremes.

The reasons for marriage breaking are manifold — alcoholism, physical and mental cruelty, desertion. Irrespective of the reasons, the results are there. I am not enamoured, as most people are not, of the argument that nullity is the answer for everything. I subscribe to the view put forward by many people in the other House, in this House, and by Senator Ferris that nullity is no answer or remedy. Nullity presupposes that no marriage existed in the first place. It is a gratuitous insult to people who have been married for 10 or 15 years, who have worked hard at that marriage, who were, for a period of time, reasonably happy but who for reasons perhaps of their own making or not suddenly found themselves in situations where incompatability arose, to be told their marriage never existed in the first place. I, like Senator Kiely and every other speaker, wish that this did not happen, but it does happen. Those of us who find ourselves in secure, stable situations should be all the more grateful, accommodating, compassionate and understanding in our determination to ensure that the necessary facilities to allow people disengage themselves from these types of situations should be advanced, put forward and made available.

I as a member of the Catholic Church, and adherent to the basic tenets of the Catholic Church, pay tribute to the Church for the manner in which it has undertaken its role in relation to marriage, matrimony and underpinning and servicing matrimony before, during and after marriage. In this regard there has been a considerable degree of neglect by the State. Were it not for the Church and for many of the services provided by the Church, either pre-marriage counselling, post-marriage counselling, mediation services, shelter groups etc., there would be a much higher incidence of marriage breakdown. At the same time it is the primary duty of legislators to legislate for the common good.

Like the speakers on the other side of the House I fully endorse the protection of the family and the family unit. I do not subscribe to the view that there is going to be an avalanche, torrent or a whole series of applications for divorce decrees in the event of this referendum being passed. We had the same hysterical, emotional arguments put very forcefully to this House, to the other House and to the media generally by the Church in relation to the family planning legislation. I venture to suggest, without having any statistical evidence, that if one were to monitor or to quantify the number of additional condoms introduced into this country or sold by chemists across counters, the grim forebodings of the Opposition and the Church in that regard have not been borne out.

I am not anxious for divorce. Basically I do not like divorce. I think that divorce is a remedy that should be made available. It is a civil right that should be there. It is an option that should be made available to people. I do not see the introduction of this measure as making divorce compulsory, as would seem to be the general thrust of argument from the Opposition benches. This is about people's ability to take charge of their own lives. When people are talking about legislation they should address themselves to the facts. One of the earliest arguments put forward by the opponents of this measure was that it was too liberal, there was no fault divorce and it was almost creating a situation where we were going to have divorce on demand. As the Minister has pointed out, without adequate refutation or rebuttal from anybody, this is the minimum we could introduce. This is probably the most restrictive form of divorce one could have. There will be a five year waiting period. This means a couple will have to be married for at least five years before they can even contemplate divorce. It will also be introduced in two stages. First, there is the judicial separation and, second, the dissolution decree. It cannot be shortened other than by an obligatory five year waiting period.

I am somewhat appalled by the critics of our courts system etc. who say that our judges cannot be trusted in relation to exercising their discretion. The Judiciary have stood the test of time. The basic values of society have been well addressed by them. By and large the judicial system has served this country well.

I welcome, in particular, the introduction of family courts. I urge, as Deputy Shatter urged in the other House, that the judges and members of the Circuit Court who are chosen to perform this task are people, who will have a special sensitivity and the necessary skills to handle the subjects and the delicate area in which they will be dealing.

When one looks at the other remedies and supportive measures that are being introduced in relation to property, custody, maintenance payments etc., I cannot for the life of me share in the slightest apprehension of the people from the Opposition benches who say that this will destabilise marriage, will undermine the fundamental unit of society and will wreak havoc on Irish traditional values. I am very happy with the values and safeguards that are enshrined in this legislation.

The divorce provisions in other countries, give the lie to the allegation that the form of divorce envisaged in the Bill is more liberal than that which operates in other jurisdictions. Other jurisdictions, by and large, are far more liberal in that regard. For example, in some American states there is only a two day waiting period. In Sweden there is a two week waiting period. In Germany the basic requirement is a general consensus in relation to failure, plus a one year waiting period. In the Netherlands there is the condition of irretrievable breakdown and divorce, in some cases, is permitted in the first year of marriage in certain circumstances. In Finland, both partners agreeing, there is the introduction after a six month waiting period. In Australia the court can refuse a divorce petition if the judge feels that reconciliation is possible in the case before him. Otherwise there is a one year waiting period.

Basically, I would subscribe to the thesis of many people that good divorce legislation can actually support matrimony and this legislation will be proven to have this effect. From the point of view of making a rational comparison with our own situation, the best comparison would be with countries which have most recently introduced divorce and which, basically, have the same Catholic ethos as prevails in this country, for example, Spain, Portugal and Italy. In Spain, where divorce was introduced in 1981, there is a two year waiting period or a five year waiting period if the divorce is being disputed by one or other partner. A phone call to the Spanish Embassy, a general query as to what the incidence of divorce was in Spain since its introduction in 1981, elicited the reply that it was low. In Portugal, where divorce was introduced in 1974 and liberalised in 1977 there was — as will happen in this country because there is a backlog, the evidence is there from the Joint Committee on Marriage Breakdown whether or not one accepts the validity of the statistic of 70,000 — a rise immediately but, hopefully, our experience will be that of Portugal, that there will be a subsequent fall. Again, it is the general consensus in Portugal and it would be acknowledged by Church people there that it has not undermined or destabilised society or marriage.

In Italy the requirement is that if there are irreconcilable difficulties, divorce is permitted. Where there is a disputed divorce there is an obligatory seven year waiting period. If there is agreement between the partners the period is five years.

The greatest possible laboratory example of divorce in the situation in which we find ourselves is the Northern Ireland situation. This is the one irrefutable argument in relation to giving people the necessary assurance that we are not going to have an epidemic or a deluge of divorces in this country when the legislation is enacted. I would take issue with some of the statistics trotted out by Senator Kiely by which he showed that there is an escalation of the numbers of people suing for divorce. An examination of those figures shows that among the Catholic community in the North of Ireland there is not anything like the ratio of divorce as pertains in other countries or as pertains in the North of Ireland among the Church of Ireland community or the Protestant community. I would venture to suggest that these people swing the same hurley and have the same values and the same traditional basic interests as Senator Kiely and his Limerick people. Senator Kiely spoke in very emotional terms about that — that there is very little basic difference in terms of values, culture or interests between the people of Crossmaglen and the people of Clones. The Northern Ireland experience, which is so reassuring for all of us who might have anxieties or worries in that connection should give us the necessary encouragement to proceed with the referendum.

Is the Senator disputing the figures?

I am disputing the figures in relation to the Catholic minority in the North. One of the answers given by the Hierarchy in this regard is that because of the type of siege mentality in which the minority community find itself there is a feeling that if one sues for divorce, one is letting the side down. I do not subscribe to that view.

It is the duty, obligation and the right of the Catholic Hierarchy and the Catholic Church to instruct. I have no doubt whatever but that they will do so. I take a certain amount of courage, comfort and consolation from the opening words of the Bishop of Clonfert on the "Today Tonight" programme the day this referendum was announced. Hopefully they will be followed by the vast majority of churchmen. He said that the position of the pulpit should be used and not abused. In fairness, to date, happily, that has been our experience.

But just as it is the Church's obligation and duty to look after the welfare, the morals, the values of their flock, equally, it is our duty and obligation as legislators to consider the mental anguish and cruelty with compassion and to legislate honestly and fairly without fear or favour. This legislation does that.

One can justifiably ask, as Senator M. D. Higgins asked in the House today, what happens if the result of the referendum is not positive and what happens to the children of marriages that have been nullified? He asked what would be their property rights and what is their status and standing. As a legislator, it is my bounden, duty and obligation to go without fear or favour before my electorate, to point out to them the facts in relation to this issue, to point them in a particular direction and, having done that, to allow them to make up their own mind on it. I sincerely hope that the proposal to have a referendum is carried.

I was here for the Minister's speech this morning and for some of the other speeches and I listened very diligently to them. I was not very anxious to take part in this debate not for any particular reason. It is an issue for the people. The people should be mature enough to make up their own mind on it.

I compliment the Members of this House for the dignified manner in which the debate has been conducted throughout the day. Sincerely held views have been expressed from all sides of the House, views supporting the amendment, views against the amendment and I would not question the sincerity of any of the speakers. We are all in public life, many of us for a long number of years and we have many objectives in life. We have political objectives. We have political ambitions. We have social objectives and moral objectives and we try to help the community irrespective of what party we belong to in the best manner possible. That is why I would not like to seem to be crossing swords on this issue with some of my good colleagues in the House. I have made many friends since I came here and I do not intend to cross swords with anybody here tonight.

Even though we cross swords we can still be friends.

I know that. I want to briefly place on record my views on the referendum based on my experience and on what I feel will be best for the people of the country. First, I want to place on record my full approval for the manner in which the Fianna Fáil Party handled this matter. The party leader's speech in the other House was a very constructive one and a very fair assessment of the situation. I am happy that I am not under a party Whip to have to make a decision that would be, perhaps, against my better judgment or against conscience. I am happy to be free to express myself as to what my personal feelings are on this matter. As I have stated, it is an issue to be decided by the people. It is their decision. It is their choice whether we have divorce in the country or not.

I do not intend to go into any of the technicalities of the Bill. Many Members have discussed various technical aspects of it. Some of the technicalities are beyond my comprehension, technicalities that will have far-reaching effects on many of the families involved if the legislation becomes law.

I view the Bill in the light of my experience, as I have stated already, and as a public representative since 1967. In that period I have served as a member of a local authority, the Vocational Education Committee, library committees and health boards. I have been a member of many visiting committees to hospitals, some of them psychiatric hospitals. In my experience in dealing with the many social problems that exist in society, I have seen marriage failures and I have known the reason for many of these failures. In many of the cases I have known, I am fairly convinced that the same problems would arise in a second or even a third or fourth marriage. The people concerned had failed to recognise the problems of the situation they were in and then failed to take the necessary steps to rehabilitate or combat the problems prevalent to their way of living or to the situation in life in which they found themselves.

There is no doubt that the people have become the victims of a fast moving world where pressures are becoming increasingly intolerable to bear for many people. It is only realistic to recognise that fact and to understand that these pressures can have a detrimental effect on marriage in certain areas. Some people are built with strong wills and have the capacity to cope, other people just have not got that strong will or even the capacity to cope with situations. Yet, I know from experience, that many cases of seeming marriage failures or discord have been totally healed. I am glad of this fact. I have seen some cases where there seemed to be no solution whatever, yet with some help and advice, and communication, the situation was reversed. I know families who seemed to be a hopeless position and are now living happily together. I am proud of this fact. Had divorce been available at that time, I have no doubt whatever that husband and wife would be living apart. I asked a young boy what his feelings were on the divorce Referendum. He said that he would be for it. I asked him would he like if his father was living away X number of miles from his native town and away from his mother and his reply to me was: "My God, no way." I know that that family had experience of great difficulties a number of years ago but they had the will. They got the inspiration and with help they gradually came back together and are now part of a happy family unit.

The clergy have been criticised, the Church has been criticised, pro-divorce groups have been criticised, anti-divorce groups have been criticised. Let us be fair on this. The role that the Church has played in trying to help preserve the family unit should not go unnoticed during the debate. High praise should be given to the Churches for the role they have played. The various social bodies and councils should be taken into account for the work they are engaged in. The greatest source of failure of all with regard to marital breakdown is the lack of communication.

I speak regularly in the House about family businesses and how we should protect the family business, how we should endeavour to preserve the family business. My concern here tonight is for the preservation of the family as a unit. We are all concerned about the preservation of the family unit. This is my personal view. At approximately 9 o'clock this evening I had a telephone call from a person with a young voice. I said "Michael Lynch speaking" and he asked: "Where are you from"? I said: "Leinster House" and he said: "Sorry, wrong number". Being conscious of the debate that was taking place in the House tonight, and throughout the day, I tried to have a short conversation with this young person. He kept on apologising that he had telephoned the wrong number. It reminded me of the innocence of youth.

I sat down in that office and asked myself where do people go wrong? At what stage of life do all these problems arise and for what reason? Is it a gradual development or is it a combination of social depression or social depravity coupled with an acceptance of dominant outside influences? I fear that the day may come when we will have children in this country who will experience, not just their first, second, but their third or maybe even their fourth set of parents, which has happened in other countries. I am very concerned about that.

I would much prefer to be here discussing ways and means of trying to help to alleviate many of the problems in relation to marital breakdown. There are many problems and many situations where marriages are seemingly on the rocks but with goodwill and the necessary help the problems could be resolved. As I see it, for the very good and strong marriages, legislation, whether for or against divorce will have no impact whatsoever. For the weaker marriages, it could tip the scales towards a way out, the handy way out, which is not always the right way. Certainly, it would not be the right way in this instance.

The Taoiseach in his speech remarked that the legislation would stabilise the marriage structure. For me that is impossible to comprehend. With all due respect to what sincerity was behind that statement, I just cannot figure out how that could be.

I, in conscience fear greatly the consequences of this amendment if it is carried. There are many questions that I could ask. There are many questions that should be answered before the Bill leaves this House. Perhaps, some of them have been asked by other speakers here. For instance, who will pay the legal fees and for the legal aid and what will be the cost to the State? We should not always put money before people. I am not doing that but these are questions that will have to be answered. If this legislation is carried, they are situations that will have to be faced up to. It is quite possible that the Minister could be back with a supplementary Budget to cover the cost to the State. The taxpayer will have to carry the can as usual.

That is all behind me.

What constitutes a failed marriage? I could ask many questions on this issue. I have known of cases where families have apparently separated and yet come together once a year for Christmas. Could those marriages be regarded as failed marriages? I have expressed my views on life as I see them and on the family unit. I am fearful that this amendment could erode the family unit. On the day of the referendum, I will be personally voting against it.

I should like to say from the outset that I support this Bill and the various recommendations it entails. It is quite clear at this stage that we have a significant degree of marriage breakdown in this country and that we, as politicians, have a duty to put some order and reason into the confusion that has resulted from that level of breakdown. We have separations, both legal and otherwise, barring orders, marriages dissolved by decrees of nullity and also church annulments. Some of these procedures allow remarriage, thereby causing difficulties for children of the first marriage who are deemed illegitimate and both partners lose maintenance and succession rightsvis-à-vis each others' estates.

Some groups argue that the current proposed divorce legislation, even though very restrictive, will in some way undermine existing marriages. I believe, that though this may be a very sincerely held view, it is both an insult to and an act of no confidence in the thousands of stable and secure marriages in the country. Family tradition and a strong marriage bond is rooted in the Irish culture. I am convinced that a very restrictive form of divorce legislation will not seriously affect us. In the context of this debate Ireland has been compared to such places as Las Vegas and California. It has been inferred that marriage breakdown and divorce in these areas will simultaneously arise in this country. It is nonsense, I feel, to compare the cultural traditions of either a place like Las Vegas or California with the cultural traditions and family ethos of Ireland.

On the actual wording of the legislation, I feel that separation and failure prior to a decree of divorce being granted should be clearly clarified. The Minister and the Minister of State, Deputy Fennell, have done that in their speeches on Second Stage in both Houses. However, before the Bill leaves this House the issues should be clearly and precisely clarified, especially in relation to separation. There seems to be some ambiguity as regards length of time, what a period of five years involves. Could two people living together for five years claim they were separated because they may not have been sharing the same bedroom or maybe because they had some differences? I feel that this whole period of five years is not clearly enough defined. There should be a definition of when the five year period is deemed to have begun and expired.

The basic difference between legal separation and divorce has been mentioned several times in this House today. It simply is that divorce confers the right to remarry. This is both a compassionate and humanitarian approach to adopt. there are now thousands of second unions in the country which are stable and happy. In many cases there are children of these unions. These are family units but do not have any legal status whatsoever. The report of the Joint Committee on Marriage Breakdown states that such stable but non-marital relationships may create an element of insecurity which can lead to further breakdown and trauma for the couple and the children. The joint committee report also states that the number of second relationships will increase and that the number of children which result from such relationships will increase too. For this reason I feel it is very important to update our laws on marriage. Otherwise, as has been stated, our legal system with regard to marriage breakdown and family law could fall seriously behind.

I welcome the establishment of the new family court system which will deal with judicial separation. These new courts will be much more sensitive to the feelings of the couple involved and will be less formal and confrontational than the normal court setting. The family court will play a key role in recommending mediation and will attempt to bring about reconciliation. The case Senator Lynch referred to could be dealt with by the family court. He mentioned a marriage that was on the rocks and that if divorce was available at the time it could have broken up but, because the couple involved made an effort and worked hard at it, they became a very compatible couple. These courts could fulfil that type of function. A divorce decree can only be granted when the court has decided that there is no reasonable possibility of reconciliation.

Furthermore, the court makes various financial orders to ensure that the interests of a dependent spouse and children are adequately protected and provided for. The court will be very important and the people who are appointed to the courts will have to be suitably qualified in family law. Apart from that, they should have immense experience in dealing with family law. These people will have to be skilled and understand the whole psychology of the matrimonial relationship.

I welcome the proposal that in future the minimum age of marriage will be 18 years. I have always been concerned about people getting married at a very young age. They are frequently financially insecure and are also emotionally and psychologically immature. That is not to say, of course, that these marriages have never worked in the past. In fact, some people who were married at a young age have very successful marriages but, generally speaking, people who get married at a very young age are under more pressure. Such marriages are often due to pregnancy, which is not the best basis for a marriage. Research has already shown that marriages involving young persons are more likely to break down than marriages between persons of more mature years.

I am also somewhat disappointed that detailed consideration has not been given to education for marriage and pre-marriage preparation. The State must do everything possible to prevent or minimise the extent of marital breakdown, I have emphasised, again and again, in this House the importance of education — sex education and, in the case of marriage, relationship education. This would have a very important bearing in the preparation of people for marriage.

I would also like to refer to the report of the Oireachtas Joint Committee on Marriage Breakdown. In Chapter 3 it dealt with education and I refer to section 3.11. Throughout the deliberations of the committee there was a constant emphasis on the importance of being prepared for marriage. Many submissions which were received by the committee pointed out the need for a structured approach to educating people for marriage so that, in so far as possible, all persons who marry are aware of the duties and obligations, rights and liabilities which are directly involved. In section 3.13 it was pointed out that the committee were aware that some of the problems which gave rise to the breakdown of marriage are present before the marriage. The committee stressed the need for an education process to reduce the element of uncertainty so as to promote awareness, reflection and mature consideration by all parties.

I believe education has a key role to play and in a submission to the committee it was pointed out by Dr. Jack Dominian, a clinical psychiatrist with a central Middlesex hospital, that education for relationships should be an essential part of education in schools and that students should be taught about personal relationships, about trust, communication, affection and understanding. These traits provide the basis on which a successful marriage can be built. I appeal to the Minister and to all concerned to emphasise the need to set afloat in the schools and the curriculae a relationship educational programme that would prepare people in a better manner for marriage. I am convinced that within the present educational system we need an integrated and specific programme geared to the preparation for marriage.

Deputy Hussey, the former Minister for Education, dealt with this on a number of occasions and at the time she was very concerned and committed to implementing such a programme, but, unfortunately, recently the same commitment seems not to be there. It is important to reconsider the immediate implementation of a proper relationships educational programme in our schools. Choosing a partner and getting married is the single most important act in one's life. It, therefore, requires adequate and serious preparation. This brings me to the question of providing direct pre-marriage guidance immediately prior to a marriage. The provision of such pre-marriage courses is rather haphazard at present. In some dioceses it is compulsory for Catholics to attend, but this is not universal.

The State plays no role whatsoever in the direct provision of pre-marriage courses. The State will have to fund adequately the existing agencies in the fields and also establish, where necessary, non-denominational courses for those who wish to avail of them. The compulsory aspect has to be handled very sensitively. The State should create a climate for pre-marriage courses where people entering marriage would feel inadequately prepared unless they had completed such a course. I appeal to the Minister to refer to this when he is replying and inform us of any intentions his Department may have of setting up State-sponsored, pre-marrriage courses. Any such courses could include the following: an understanding of the nature of marriage, the importance of communication, responsibilities and obligations within marriage, an awareness of human sexuality, family planning and family law and finance.

It has been mentioned here already by Members from all sides of the House that the best basis for a happy marriage is a happy and secure family background and childhood. At present, the three factors which cause most stress in families are unemployment, poverty and the abuse of alcohol. If we as a nation could eliminate these, we would have a fair degree of success in preventing marriage breakdown, and minimise the necessity for divorce. I am quite pleased and happy with the efforts being made by our Government to alleviate the problems mentioned above. Hopefully, the new liquor laws will ensure that, as a nation, we can become less dependent on alcohol which is the root of many of our social problems, especially within marriage.

Several arguments have been put forward against the introduction of divorce — I must say very sincerely by Senators from the other side of the House. It has been pointed out that the 50 year ban has served us well in producing the lowest marital breakdown figure in Europe. I feel confident that, following the introduction of divorce, we still will have, and continue to have, the lowest marital breakdown rate in Europe. Some speakers pointed out that divorce seems to produce more problems than it solves. For example, according to some Senators it increases emotional problems, litigation, social security payments and demands on the welfare services. Again, divorce may contribute to these problems but certainly unresolved marital breakdown can have similar effects.

It has been pointed out that divorce, when introduced, would have a snowballing effect. As I mentioned already, this is an insult to those people who are already married. It has been pointed out also that if it is introduced the nature of marriage will have changed; no longer will it be a lifelong commitment. I feel that for Catholics the law will not have changed; if I get married within the Catholic Church that lifetime commitment is still there. It has also been pointed out that divorce undermines family life, damaging especially the more vulnerable women and children and families. The converse can be true, that a marriage which is not working can have even more undesirable effects.

Senators in favour of the Bill have agreed that it is unjust and unfair and lacks compassion to prevent people, some totally without fault, from re-marrying. It was also pointed out that children suffer more when unhappy marriages are kept going by legal rules. This morning Senator Ross said we are out of step with Northern Ireland, and indeed, with most western democracies and many other countries. The fact that divorce is available to Catholics in Europe should entitle Catholics in our country to have the same privilege. After all, we are in the same Common Market at the moment.

It has also mentioned that the unavailability of divorce limits personal freedom by enforcing one religious viewpoint. Minority religions allow divorce in this country. Marriage breakdown is due to the collapse of a relationship and is not its cause. Both arguments, for and against have been very well put in this House. I do not doubt for a moment the sincerity of those people who have opposed the amendment here tonight. However, the arguments put forward by various speakers in favour of divorce certainly convince me of the need for the amendment.

I should also like to refer to the position of the Catholic Church. I fully appreciate the position of the Catholic Church and the right of the Catholic bishops to speak out on this very important issue. The Catholic Church's insistence that the family unity be preserved and protected has also been recognised and appreciated by this Government. No one individual in this House disagreed or would disagree with the above sentiment. However, the amendment itself is a reasonable and moderate one and should be supported on compassionate and humanitarian grounds.

Finally, I should also like to pay a special compliment to our Taoiseach and Leader for bringing forward this very important and vital legislation. He has displayed immense courage in doing so. He has again displayed the great characteristics of true leadership.

I am glad to get an opportunity to make my contribution on this Bill. As I said this morning, I am disappointed that we are sitting at this late hour and proceeding in this manner because really I do not think there is any necessity for it. Another week would make no difference in my view. If it would, this should have been thought of in time so that we could deal with the Bill in the ordinary way. By taking it in this manner, the spotlight is more or less taken off areas like unemployment and other problems the Government should be dealing with.

They are dealing with such problems.

I sincerely hope they are. The point I am trying to make is that we could deal with this Bill in the ordinary way. While it is important and I know it is necessary to deal with it in as short a time as possible, nevertheless it is undignified and unnecessary to bring it forward in this way.

My contribution will be made in no particular sequence. I just jotted down some notes as the ideas came to me. I will go into the areas I feel are important. I have already explained my position: it is on the record of the House. I stated that regarding marital breakdown I could not envisage any satisfactory solution which did not include divorce in certain limited and extreme circumstances. At the time my point of view got considerably exposure, principally by Gulliver inThe Sunday Press. I am sure everybody is aware of my point of view. I have the same point of view still. This Bill meets the criteria I laid down and that I would expect. Therefore I will be voting “yes”.

I want to say also my particular line — I will not say causes me embarrassment — makes me feel somewhat uncomfortable in so far as I am making the same case as Members on the other side of the House. However, I have always felt there are some matters which are above party political considerations.

The Senator is to be congratulated on his integrity.

There are some matters that are above party political considerations. There are areas where people should not be constrained by party politics and once that is conceded it follows that this is one area that would fall into that category because of its importance and sensitivity. I want to thank my party for allowing me to give my individual views: they are solely that. It is rather unusual for parties to take this line and I am glad to have the opportunity to put on the record of the House my personal views in this area.

I have no exaggerated notion regarding my competence to express views or opinions that would be helpful. When the report of the Joint Committee on Marriage Breakdown came before this House I spoke for about two-and-a-half hours on three occasions. I remember at the end of that time one of my colleagues asked me if I had contributed or if I intended to contribute. I am under no illusion that I made any outstanding contribution or original comment on that occasion. I am still in the same position. I have nothing original to say. I have no special insights but at my stage in life I can look into my heart and, while I do not like what I see — I have a fairly good picture of my shortcomings — I feel that, from my experience, both personal and in the society in which I grew up, and due to my special concern, my sympathy, my love and, above all my intellectual honesty in those areas, what I have to say will have some relevance.

It has been a struggle to come to this decision as I am sure it has been for every other Member of the House. It is a very grey area but we must make our stands and determine whether we are coming down on the side of black or white. I have been consistent at least. I do not wish to claim that consistency is necessarily a virtue because often there are changes in a situation which would lead one to a change of mind. There could be circumstances which could make deviation necessary and where it would be correct. Those who have thought deeply about this subject are not easily changed. I could not be changed regarding my viewpoint in this situation. In most cases I would have doubts in coming to a decision but I am perfectly satisfied and happy that my decision in this regard is the correct one.

My reasoning is very simple; maybe too simple. I am leaving the legalistic end to the lawyers. I am looking at it from the simple viewpoint of a layman. Marriage is for happiness, above all. All those who enter into that state do so in pursuit of happiness. Happiness in marriage is very often bought at a very great price. I do not know how we could put a figure on that price: I do not know if it would be possible to measure it in that way. I would determine the value from the other side, from those who are not prepared to pay the price. I would like to give a few examples. The alcoholic who refuses treatment is not prepared to pay the price. I do not want to be unfair to alcoholics. They have a big problem and I suppose a stage is reached at which they are not responsible. Nevertheless, for some time along the line there must be the voice of conscience or some other voice within an individual saying that this is the wrong choice if a man leaves his wife at home looking after children while he goes out and spends money on drink, money that should be spent on the family and the home. He spends the time he should spend with his wife and family in the pub. He comes home in a silly state. That man is not prepared to pay the price. The husband who abuses his wife is not prepared to pay the price. He is not prepared to make the effort to control his emotions. The criminal who is in prison for a long time or the gambler are not prepared to pay the price. In this week's edition of my local paperThe Meath Chronicle there is a letter from a young woman whose marriage has broken up. In one part of it she stated:

I think it is hysterical and misleading for the anti-divorce lobby to say that divorce causes marital breakdown. What usually causes marital breakdown is mental cruelty, physical cruelty, alcoholism, infidelity, desertion.

They are the areas I have mentioned in a different sequence. I suppose somebody who has gone through that trauma and experienced the pain and pangs of that situation is in a better position than I to determine the correct sequence. Nevertheless, drink is one of the great curses in this country. I am not against drink; I am against the abuse of drink and therefore I would regard that as the number one problem. There are other areas of serious neglect or defect within a marriage. All of these are unwilling to pay the price. It is too high. In every instance there is a minimum price to pay. When we say marriage is for life we are really saying to all those selfish people "Do whatever you like, your spouse must put up with you for life." That is wrong. It is giving freedom to those who do not play the game. I do not agree with that. While I am not saying every wife in any of those situations should get divorced, what I am saying is that because the spouse is not playing the part that they should play divorce should be available to them.

If I employ someone I expect them to come on time, to be diligent, to have an interest in the work and, if not, I let them go. Marriage is for life. It is the most important relationship and it seems extraordinary that there are no rules of behaviour. We only need love to initiate a marriage and seemingly love is not considered to be needed to maintain it. I do not agree with that. Life is very difficult in a marriage situation where there is love; it is impossible where love dies; but what is it like when love turns to hate? We can visualise that situation. We know families with that problem. There are cases where couples try and fail. They make an honest attempt. There is such a thing as incompatability. Couples can drift apart. People develop in different ways. Mature people make sacrifices for the family. If a marriage has broken down, failed, as it is termed in the Bill, for five years, the choice of divorce should be available.

There are people within the stresses of a relationship who have not the capacity to grow in love. How many I do not know. It is related to the stresses of modern living. This has been developed at some length by other Members. It is going to increase. This increase in marriage breakdown is to a large extent a function of the improvement in the standard of living, so that has its drawbacks. When we are young we are all naive, and many people learn the hard way. When I was young I felt that, if somebody fell in love, worked hard, got the material comforts, and had everything that was needed, happiness would follow. It is a big jolt to realise that we are wrong. Many people have found that happiness was in the striving, not in the achievement. When they got there, they had everything the wanted but happiness seemed to evaporate.

Because my marriage is stable and because I am married to a wonderful girl, I have no right to condemn where there is marital failure and say "You cannot start again. You did not try hard enough. You made your bed and must lie on it." I do not believe that. When I come across a spouse, young or old, left forever, do I lecture that marriage is for life or do I feel that a caring God would understand and allow a fresh start? Divorce is objectionable — and I am sure everybody in the House would share that view — but this limbo is far more so in my view. People marry for a sexual relationship and they are denied this in a broken marriage. The Catholic Church forbids sexual intercourse outside marriage. We live in a predominantly Catholic country, so 90 per cent of the problems that arise involve Catholics.

This raises another issue which again has been dealt with. I favour a pluralist State. The tenets of one particular faith should not be implemented in legislation or the Constitution. We should acknowledge freedom of the rights of other religions. Their choice should not be bounded by another belief, a different religious outlook.

Catholics loyal to their beliefs may not remarry after divorce. Catholics loyal to their beliefs may not use artificial contraceptives according to the teaching of the Church. I am not saying they should not. I am stating the fact. Many of them do and in conscience can do it. I am sure they are right. I believe in other countries where divorce is available the problem is no different with regard to Catholics. Catholics get divorce at the same rates as other religions. If the same happens here — I am not saying it will happen here, but there are others who say it will happen here — then we are denying this choice not just to members of other religions but to those of the majority religion who would not be inhibited. We cannot say that these members of the Catholic faith remain faithful when they have no choice in the matter. Looked at in another way, the Church is using the State through its laws to enforce its doctrine. This should not be. The Catholic Church, I believe, has the right to lay down rules and insist that they be observed by those with that particular religious conviction. I believe it does not have the right, or any other religion in a majority situation, to have any of its rules enforced by Constitution or statute.

I said before, as did many other Members, that tolerance and pluralism are very important with regard to the rights of minority religions and many people would not be categorised in a religion at all. On many occasions in the past I have deplored the fact that all over the country we are losing the small Protestant churches. It is terribly sad in my area to see those churches being knocked and got rid of. It is not just a religious loss; in my view it is a cultural loss. I remember in the past — and other people have commented to me on the situation on Sundays when people of both denominations went to their churches regularly. In the old days they would pass by at the same time on a Sunday in the trap to service. Those who lived near the churches heard the hymns being sung and the service. It is terribly sad that that is no more.

I feel we have a place in our country for those people. I say to the people of that religious persuasion, and all religious persuasions: "We have a place for you". But that should be shown in a practical way. A very practical way to state it, and to state it very clearly, is to show that we have a place in our Constitution for those people, not just in relation to Article 44 but in relation to the civil rights of those denominations. Most of the objections against legalising divorce are based, I feel, on religious convictions — not all but most of them. To make those values mandatory in Statute is the antithesis of pluralism.

Desmond M. Clarke inThe Church and State, which was published by Cork University Press in 1984, had this to say in that regard:

The fundamental inspiration of pluralistic legal systems is that the rights of minorities are valued just as highly as the rights of majorities, and that the legal system should refrain as much as possible from enforcing values which are patently religious. Apparently, the Catholic Hierarchy in Ireland does not believe that most of the values they support are purely religious. They think that these values are supported by reason. But this is usually the case with any religious group. Religious believers often assume that "reason" supports their belief, even in the face of obvious dissent from rational people who share different religious views.

The test of whether a belief is religious or not is not what its supporters say about it. Rather, if accepting some belief systematically coincides with being a member of a Church, then such a belief ultimately rests on religious faith.

The Catholic Church's teaching about the morality of contraception is a clear example of this. I would state quite categorically that the teaching in regard to divorce is a clear example of this, it seems to me. Then the author goes on to deal with the rejection of religious liberty and of pluralism, as usually understood. It makes for different problems, which he goes into later. He states that:

The overruling of free choice of those who disagree with us by legislation is often justified by paternalism.

Further on in a later chapter he argues that:

Except in special circumstances paternalism cannot be morally justified because it undermines the essential presupposition for any moral system, which is the autonomy of individuals.

I am deeply sorry that we have failed in passing on the values we inherited. I am sure everyone else in this House feels the same. I am no different. In my youth we had a more docile society, though inhibited in many ways. Some of the values at that time I would question also. But it would not be appropriate to deal with that in making my contribution on this Bill. But there was not the same emphasis on these values. Sex outside marriage and the stigma attached to the unmarried mother has all changed. At present we have girls as young as 16 years of age becoming pregnant. We have people cohabiting and rearing a family without being married. But at the same time I feel that society is more understanding of the people in this situation, and very rightly so. In my view that is a very good and very proper thing.

As I said, most of these problems are related to the stresses of modern living. It is the price of progress. I feel that it is wrong that we should bury our heads in the sand when it comes to dealing with those problems. Of course, some stresses spring from a conflict of values. To give one instance, children are taught, as we were taught, religion in schools. They are taught the commandments, I am sure, the same way as we were. I am sure in particular with regard to the area of sex there is the same emphasis on the sixth and ninth commandments as when I was going to school. Children are taught in this way what is right and proper. Then they come back into their homes and turn on the television to watch Dallas or Dynasty where, I believe — I do not watch those programmes, I do not have time — married people are jumping into bed with different partners. This is indicative of a good time, so what choice these children can make I do not know. Certainly if I was taught one thing in my religious classes at school and saw a far more attractive and immediate concept on television I would not have the strength to make the proper choice. I do not blame any of those people who are not able to make the choice. I do not want censorship, yet I am concerned about the effect of these types of programmes on the youth.

In other areas also we have got this problem. I am a member of the Joint Committee on Women's Rights — a hard working committee, and on 14 May we met a group from the Rape Crisis Centre dealing with the problems associated with rape. These programmes were discussed and I can say the members of the Rape Crisis Centre, were the most impressive group that I had the pleasure of meeting at any of those meetings. With regard to Dallas and Dynasty they stated that those films showed people getting into bed and nothing more, but children have their own imagination and any intelligent child does not believe that those people are getting into bed for a rest. The Rape Crisis Centre also talked about video nasties and their widespread availability portraying sexual violence and pornographic material. This debases the human being, especially women. I will quote from their statement in relation to video nasties:

Video nasties are a brutal, horrific, ugly and debased representation of human relationships and sexuality. Their current popularity raises serious questions about the direction in which our society is headed. How can people sit down and watch gross violence and bloodshed and rapes and brutally explicit sexual humiliation as a form of entertainment and pleasure.

Where is our society going? But apparently that is the reality and there is no point in sticking our heads in the sand.

People have said to me that I support divorce. Nothing could be further from the truth. I do not support divorce. I want people to live in married bliss, living together in a Christian way, husband and wife working hard to satisfy and compliment one another and bringing up their children properly. I support everything that is good in marriage, above all happiness. But I also support a means of escape for those trapped in broken marriages.

I note the intention to increase the age for marriage to 18 years. I thought that was already decided. I agree with that. It is hard to know what the proper age for marriage should be. In one sense I believe that young people are resilient, flexible and adapt to new situations quickly; older people very often can be set in their ways but nevertheless most problems are related to marriages of young couples. They are not aware of the power of their own or their spouse's emotions and therefore it is a mistake to marry too young. Before marriage there should be a proper marriage guidance course and counselling and I want to congratulate all of the Churches who organise such courses. I also want to congratulate the clergy and the volunteers who have given their time and patience to such courses. It is necessary to inform people and certainly in this area ignorance is not bliss and ignorance can never bring bliss.

Over 30 years ago I remember going to Navan to a rally which was addressed by Fr. Peyton, the family priest. There was a large crowd at that rally and his motto was that the family who prays together, stays together. At that time the family rosary was recited in most Catholic homes. I wonder how many homes recite it now, but that is not my point. Fr. Peyton made a point which has always remained with me. He stated that when two people get married they have picked one another out from all the billions in eternity. Whether their meeting was providential or accidental they have been brought together and they should make every effort to make their marriage work. They should show responsibility rather than run away from the problem.

That lovely picture has always stuck in my mind. It is still true but in spite of the best attempts, in spite of sacrifice, we have breakdown. The saddest demise of all must be the death of love — so much hope, expectation, everything that is beautiful in life, in particular for young people because they have life before them to enjoy, to bring happiness to one another, and then there is the death of love. There is the loneliness, the emptiness, the despair and the lack of communication.

In the planning laws there is the clause which is referred to as the withering clause. It never seems to me to be quite appropriate for planning legislation. The withering clause would certainly be very appropriate in the area of marriage and marital breakdown when love withers away. Love needs to be nourished and tended. It is a very tender plant. It needs proper soil.

Acting Chairman

As it is midnight, would the Deputy Leader of the House say when it is proposed to sit again?

It is proposed to sit at 10 a.m. on Friday, 23 May 1986.

Debate adjourned.
The Seanad adjourned at 12 midnight until 10 a.m. on Friday, 23 May 1986.