Skip to main content
Normal View

Seanad Éireann debate -
Wednesday, 1 Mar 1989

Vol. 122 No. 4

Judicial Separation and Family Law Reform Bill, 1987: Second Stage.

I move: "That the Bill be now read a Second Time."

At the outset I would like to thank the Government for allowing us to take this Fine Gael Private Members' Bill in Government time and also for taking Second Stage so soon after the Bill had completed its passage through the Dáil. There must be very many of us who felt that this much-needed piece of reforming legislation would never reach this House, let alone see the light of day but we can now give this proposed legislation a very genuine welcome indeed.

That we have reached this Stage today reflects credit on many people, but in particular on Deputy Alan Shatter, for this most emphatically is his Bill. In many ways it is the culmination of a decade of reforming and crusading work by him in the whole field of family law reform. While this Bill may not go as far as he would like, or as I would like or indeed as my party would like, it does mark a genuine and historic milestone in our approach to family law reform. It marks the beginning, I hope, of a new era when questions such as this can be discussed on their mertis, free from party political point-scoring, free from accusations of bad faith, free from manipulation by outside agencies and free, most of all, to seek to create legislation which is designed to serve the common good.

In praising Deputy Shatter, I must also give credit to the Minister for Justice, Deputy Collins, I said here last week that he has been a good Minister for Justice with an impressive record of legislation so far in this Parliament. Both he and Deputy Shatter have shown in this Bill an ability to compromise which reflects credit on them both.

I also give credit to the members of the Dáil committee who spent so much time and effort processing this Bill through Committee Stage. As we know, it is in Committee that so much of the real work of the Oireachtas is done. That is certainly true of this Bill which has been substantially improved in Committee and I would hope that these improvements have not yet finished.

I would like at the outset to say a word about the process which has brought us to this point today. This is the first Private Members' Bill to be enacted — hopefully it will be enacted — in this House in 30 years. It is only the sixth such Bill in the 50-year lifetime of Seanad Éireann. For the record, the other five Bills were the Meath Hospital Bill, 1950; the Agricultural Workers (Weekly Half-Holidays) Act, 1951; the Local Government (Sanitary Services) Joint Burial Boards' Act, 1952; the Friendly Societies (Amendment) Act, 1953 and the Law Reform (Personal Injuries) Act, 1958. These are the five Bills which preceded this legislation, and I can see that while each one in its own way was important the Bill before us today is easily the most significant and substantial piece of legislation of its type ever to come before the House. This Bill, in fact, brings a section of Irish family law from the 19th century up to the end of the 20th century. This is certainly a most significant piece of Private Members' legislation.

The very fact that we have reached this stage today should be a cause of some celebration for all of us who want to see Parliament working as fully as possible. Clearly, Government business must take precedence and must dominate the life and the timetable of Parliament. No one would want it otherwise, but there is a place for Private Members' Bills. If taken in the right spirit they enrich the life and the workings of the Oireachtas. They add to, rather than threaten, the position of the Government of the day. They can be seen as a sign of a Government that is confident rather than a Government that is fearful. I feel there are two sets of winners here today. First, the very many people who have waited so long, too long, for the relief this Bill will bring are the real winners but this House and our Parliamentary process is a winner, too.

The Bill before us today does not go as far as many of us would wish. This is due in part to the fact that as a Private Members' Bill it cannot constitute a charge on the Exchequer. Thus, it cannot implement one of the major recommendations of the Oireachtas Joint Committee on Marriage Breakdown that there should be established a unified family court structure to hear and determine all family law disputes between spouses that require judicial resolution. The committee recommended that the current overlapping and fragmentary court jurisdiction exercised by the District, Circuit and High Courts should be transferred to a single court, staffed by judges with a particular expertise in family law matters and who would have the back-up of the necessary welfare services. I hope after this Bill is passed the Minister will turn his attention to this recommendation, if he has not already done so, and also that the quality of people appointed as judges in such courts be given attention. Not all judges are temperamentally suited to family law. Many are not suited at all. I believe far greater care should be given to choosing the people who will act in this difficult and delicate area. Indeed, I would suggest the need to learn from other jurisdictions where special training courses are expected of those who judge in family courts.

Marital breakdown is an ever-increasing and growing problem in our society but the full extent of the problem is unknown. Comprehensive and detailed statistics on marriage breakdown are not available to us in Ireland. In fact, the 1986 census was the first census which allowed people to accurately describe their marital status. The figures from the 1986 census show that altogether 37,245 people said that they were separated. This figure includes people who described their marital status as "deserted", "marriage annulled", "legally separated", "other separated" or "divorced in a different country". Of these five categories the most worrying by far is the 13,062 people who described their marital status as "other separated." These are people whose marriges have completely broken down and are living apart from their spouses but are not legally separated. The Bill before us today is, to a considerable extent, aimed at them.

The basic purpose of this Bill is to minimise the hardship and distress that can occur when marriages break down. It attempts to ameliorate rather than exacerbate marital conflict. It seems to place a duty on lawyers consulted about a marital problem to ensure that all avenues have been explored by a distressed spouse before court proceedings are commenced. It imposes for the first time in our law an obligation on solicitors to provide information about marriage guidance services that are available and, where marriage guidance is not a practical possibility, it imposes an obligation on them to provide information about the availability of mediation services.

It is a measure which is designed to encourage spouses whose marriges have broken down to reach a civilised agreement about their future arrangements without the need of court proceedings where that is at all possible. It confers new comprehensive powers on the courts to make financial lump sum and property transfer orders to provide additional protection, in particular for dependent wives and children, by enabling the court to give them a far greater degree of security than they can obtain at present. By conferring a jurisdiction on the Circuit Family Court to resolve all outstanding problems that arise upon a marriage breaking down in one court action, the Bill will reduce the cost of family law litigation and will simplify much of the documentation required to commence court proceedings from other types of court proceedings. The prohibition on the wearing of wigs and gowns and-provision to enable judges to obtain independent welfare reports on children will make family law court proceedings a less distressing experience for those who look to the law to resolve their difficulties.

As I said, marital breakdown is an ever increasing problem in our society. Prior to the 1970s the law relating to marital breakdown had remained virtually unchanged for over a century. In 1976 the first significant reform took place with the Family Law (Maintenance of Spouses and Children) Act of that year but the first real breakthrough came in 1983 with the establishment of the Oireachtas Joint Committee on Marriage Breakdown. For the first time since the foundation of the State this committee conducted a detailed examination of our marital laws, especially laws dealing with marital breakdown. It was a major educational experience for many of those who participated. It did help to change people's attitudes. It focused public attention on the issue and it allowed the debate to be widened, not always in the most amicable of ways but at least the question was, in an informed way, put very fully on the public agenda.

In its report published in April 1985, the committee acknowledged the failure of the Oireachtas to tackle this area and it emphasised the need for reform. It proposed comprehensive and radical reform on our separation laws and of the court system which administers them. Many of the recommendations of that report are implemented in the Bill before us today. As things now stand under current legislation the only grounds upon which a decree of separation can currently be granted is on proof of adultery, cruelty or what is known as unnatural practices. The current law provides no legal remedy for many spouses whose marriges have totally collapsed and who need legal intervention to resolve the consequences of such collapse.

In separation proceedings the courts currently cannot determine property disputes between spouses or disputes relating to the guardianship or custody of children. At no time since the foundation of the State has legislation been introduced into the Oireachtas either to expressly state the grounds upon which a decree of separation can be obtained or to expand, modify or reform the grounds upon which such a decree can be granted. As a result, the current law provides no legal remedy for many spouses whose marriages have totally collapsed and who require legal intervention to resolve the consequences of such collapse.

At the present time, if the court grants a decree of separation it has ancillary powers to make an alimony order to require a husband against whom a decree of separation is being made to pay alimony for the support of his wife. It may also under the provisions of section 18 (1) of the Guardianship of Infants Act, 1964 make a declaration that the spouse by reason of whose conduct the decree is made is unfit to have custody of any children.

A decree of separation automatically deprives the guilty spouses of his or her legal right to a share of the estate of the other, either as a legal right or on intestacy under the Succession Act of 1965. There are no other statutory powers conferred on the courts to make ancillary orders following the making of decrees of separation.

At the present time, the courts in separation proceedings cannot determine property disputes between spouses or disputes concerning the guardianship of children. At the present time, the courts in separation proceedings cannot make maintenance orders for the support of a dependent husband or dependent children or orders to protect the family home or permit its sale. At the present time in separation proceedings the courts cannot make barring orders to provide protection for a spouse at risk of violence, or property transfer orders to provide security for a spouse who requires such security.

The result of these restrictions is that in many cases in order to circumvent the limited jurisdiction conferred on the courts when determining separation proceedings, the practice has grown up in recent years of estranged spouses instituting a variety of other court actions at the same time as the bringing of separation proceedings so that all issues that have to be resolved between them which arise from a marital conflict can be dealt with in a single court hearing. The consequence of this is that the husband and wife whose marriage has broken down can find themselves embroiled in two or three different sets of court proceedings and incur a great deal of unnecessary legal expense and hassle, inordinate delay and unnecessary emotional exposure.

The Oireachtas Joint Committee on Marriage Breakdown discovered that there was almost universal agreement right across the religious, social and political spectrum that our separation laws should be reformed and that the current narrow grounds on which a decree of separation could be granted should be replaced with the one overall ground of proof of irretrievable marital breakdown. The committee recognised that the current grounds for separation which require proof of the committal of matrimonial offence maximised conflict between estranged spouses, discouraged instead of encouraged voluntary reconciliation, and effectively sabotaged the possibility of future co-operation between the estranged couple.

The report of the Oireachtas Joint Committee recognised that the purpose of separation proceedings was to provide the means whereby the parties to a broken marriage could rearrange their lives with a minimum of bitterness and recrimination. The committee recommended that all barriers to reconciliation contained in current law should be removed, and this is reflected in the provisions contained in the Bill. They also recommended that following the granting of a decree of separation, the courts should have comprehensive powers to make maintenance orders, guardianship, custody and access orders concerning the children, lump sum payment orders, orders relating to the family home and other family property and also orders to provide protection for a spouse at risk of violence. All of these recommendations are implemented in the provisions of the Bill.

At this stage I should like to go through the Bill before concluding the main points in it. Part I of the Bill deals with the basis upon which a decree of separation can be granted and related matters. Section 1 of the Bill is simply a definition of what is meant by the court having jurisdiction.

Section 2 proved to be one of the most contentious sections of the Bill when it was debated in the other House and during its Committee Stage. It outlines the six grounds upon which a spouse can apply for a decree of judicial separation. This area caused great difficulty and was the subject of much of the discussion which finally led to a compromise which was acceptable to all parties. Basically, this section provides comprehensive grounds on which a decree of separation can be granted. Section 2 (1) (f) defines the concept of marital breakdown: that the marriage has broken down to the extent that the court is satisfied in all the circumstances that a normal marital relationship has not existed between the spouses for a period of at least one year immediately preceding the date of the application. This concept of marital breakdown rather than irretrievable breakdown met with general approval of all the parties involved in the lengthy debate before the Bill reached this House. I believe it meets the main case made by both sides. If accepted it takes away the need for adversarial strife which was so much in the minds of all sides in framing this particular section.

Section 3 provides that the court will grant a decree of judicial separation in respect of the spouses concerned if it is satisfied that one of the grounds referred to in section 2 (1), which have been relied on by the applicant, have been proved on the balance of probabilities. Subsection (2) states that where there are dependent children of the family the court shall not grant a decree of judicial separation until it is satisfied that such provision has been made or, intends by order upon the granting of the decree, to make such provision for the welfare of these children. This is a key section in the Bill. The provisions there are designed to ensure the protection of the welfare of the children in resolving any dispute. This section is linked with sections 11 and 16.

Section 4 of the Bill contains a provision to ensure that if parties to a marriage attempt a reconciliation after marital difficulties have occurred which could give rise to one of them seeking a decree of separation, then that attempt at reconciliation does not prevent a spouse from seeking a decree if the reconciliation does not prove successful. Under the current law if a husband or wife attempts a reconciliation and if the reconciliation does not prove successful, the spouse who could have brought separation proceedings may find that he or she is unable to do so due to their being held to have condoned the matrimonial offence previously committed by the other spouse. In effect, the current law frequently acts as a barrier to conciliation in circumstances where reconciliation may prove possible.

For example, at present if a wife learns that her husband has committed adultery and, upon his promising not to commit adultery again, forgives him and the couple resumes normal marital relations, then if matters do not work out the wife may find that because she attempted to resolve the marital difficulties she is excluded from seeking a decree of separation. Many people feel — and I agree — that the current law in this case militates against reconciliation. The provisions of section 4 (2) of the Bill are designed to remove obstacles to reconciliation inherent in the current law.

Section 5 and 6 contain provisions to ensure that court proceedings between couples are avoided where possible. This section requires a solicitor consulted about a marital difficulty to advise the spouse as to the availability of marriage counselling where there is a possibility of the marital problems being resolved. Where there is no such possibility a spouse must be advised as to how to effect a separation without bringing court proceedings. In this context a solicitor is required to furnish information to a spouse as to the availability of mediation services and the possibility of resolving the consequences of marital breakdown by the conclusion of a separation deed or written separation agreement. At this point there is no harm in pointing out that the existing mediation services have been successful, but it would probably be the view of all sides in this House that this service could very well do with being strengthened.

Section 7 of the Bill provides for the adjournment of proceedings at any time to give the spouses an opportunity, if they both so wish, to consider a reconciliation, with or without a third party, or to consider agreement on separation. This, again, is a very important section because it means that if a couple find themselves, as may happen today, on a legal treadmill there is the possibility of getting off it.

Section 8 provides that following the granting of a decree of separation the parties to a marriage are no longer obliged to reside together.

Section 9 abolishes the decree of divorce a mensa et thoro after the commencement of this Bill. Part II of the Bill contains provisions to enable the courts to make comprehensive ancillary orders following the granting of a decree of separation.

Section 10 is a defining section, defining the terms such as "conveyance", "dependent child of the family", "family home", "chattels" and so forth.

Section 11 gives powers to the court in separation proceedings where necessary to make orders in respect of barring or protection orders to provide protection for a spouse at risk of violence. It gives custody orders or access orders concerning children and orders for protection of the family home and household chattels.

Section 12 is concerned with the making of applications for preliminary orders. Section 13 is an important section. It gives the court power, when application is made for judicial separation, to make an order for maintenance pending suit, that is, an order requiring either spouse to make to the other spouse periodical payments for the support of the other spouse and of dependent children of the family pending the separation trial. Clearly, this is designed to meet a situation at present where frequently there can be very long delays in such cases.

Section 14 lists the various periodical payments and lump sum orders the court can make following the granting of a decree of separation. Section 15 lists the property adjustment orders the court can make following the granting of a decree of separation.

Section 16 gives the court power to make orders determining which spouse may occupy the family home to the exclusion of the other spouse. This section can determine the sale of the family home. It can determine property disputes under the Married Women's Status Act, 1957, orders under the Family Home Protection Act, 1976 and barring orders under the Family Law (Protection of Spouses and Children) Act, 1981. It can also determine orders under the Partition Acts of 1868 and 1876 in relation to the sale of property and orders under the Guardianship of Infants Act 1964 concerning any dependent child of the family.

Section 17 moves into the area of succession rights. This, again, is an important section because it has provisions to ensure that dependent spouses will retain inheritance rights following the granting of a separation decree. These are listed in section 17, where the court is satisfied "that adequate and reasonable provision of a permanent nature has been made to provide for the future security of the spouse whose succession rights are in question...". There is one exception where a spouse can lose inheritance rights and this is covered in section 20 (2) (i). Those rights are protected in section 17.

Section 18 is an order for the sale of property. It has provisions to enable the court to order a sale of property in circumstances where arrears may have accrued or where there is a need for a lump sum payment. Under this section the court can order that property be disposed of to meet either of these two needs.

Section 19 deals with additional family home jurisdiction. This section is inter-linked with section 16 (a) and (b). What it means really is that frequently — in fact almost always — after a separation generally it is not possible for a couple to reside together. In section 19 the court "shall in exercising such jurisdiction have regard to the welfare of the family as a whole and in particular shall take into consideration... that proper and secure accommodation should, where practicable, be provided for a dependent spouse and any dependent child of the family ...".

The details of section 19 are greatly elaborated in section 20 — the conditions relating to the circumstances in which the court will decide are elaborated in great detail, dealing both with the spouse and with the position of the child. Again, these sections provide one of the key parts of the Bill.

Section 21 deals with restrospective maintenance orders. This is a new power. It will ensure that courts can have maintenance orders backdated. Again, this can mean additional protection for a dependent spouse, especially if there has been a delay or a draggging of feet by the lawyers on one side or the other or if there has been difficulty in coming to a resolution, so that there now exists the possibility of backdated retrospective maintenance orders.

Section 22 deals with the variation and the discharge of financial property orders. This is a usual type of provision which simply takes account of changing circumstances. Section 23 on child maintenance is largely a technical section.

Section 24 is quite an important section because under this section payments can be made through the District Court office to ensure the keeping of accurate records. This section will apply automatically unless alternative arrangements are made, though in practice about half of the payments under existing law are made by bankers order.

Section 25 is largely a technical section. Section 26 is in acccordance with current law and states that payments must be made without the deduction of income tax. Section 27 is in line with current law and deals with the position of the Defence Forces. Section 28 is a technical section.

Section 29 is an important section. It is designed to ensure that assets cannot be dissipated or transferred to avoid payments. It is important because it gives the Bill real teeth. It ensures that the court can look behind transactions and, if the court is satisfied that there has been any attempt to dissipate assets or to transfer them in any improper way, this can be dealt with.

Part III of the Bill deals with court jurisdiction. Section 30 defines "Family law proceedings" in relation to a court. As stated already, currently separation proceedings can be commenced in either the High Court or the Circuit Court, although the majority of such cases at present are brought to the Circuit Court. Very often the Circuit Court hears family law cases on the same day as it hears criminal prosecutions, pub licensing applications, running down actions and other civil actions. As a result, distressed wives and husbands are often left hanging around the courts while other legal proceedings are given precedence.

The Bill expressly provides that the Circuit Court shall hear initially all judicial separation proceedings and that when it is dealing with such proceedings the Circuit Court is to be known as the Circuit Family Court. It also provides that judicial separation proceedings should be heard on separate days set aside for the hearing of such proceedings and should not be intermingled with other types of court actions.

As an alternative, it is providing that the Circuit Court sitting as the Circuit Family Court shall hear judicial separation proceedings at a separate venue to the venue in which other court proceedings are heard. The Bill also provides that all existing powers vested in the Circuit Court to hear and to determine family law cases shall be transferred to the Circuit Family Court and heard and dealt with by it. Matters relating to the Circuit Court jurisdiction are dealt with in section 31 and 32 of this Bill.

Section 33 provides for a degree of informality at the hearing of family law procedings. This is based, again, on a recommendation by the Oireachtas Joint Committee on Marriage Breakdown which — and I think this would be very much in line with current thinking — emphasised the need to reduce the adversarial element inherent in the resolution of family disputes and to provide a less formal type of adjudication process for their resolution. Where legal rights are in contest it is clear it is essential to ensure that justice is properly administered. Acccordingly, it is not possible to make such proceedings totally informal, but to deal with this issue the Bill provides that family law proceedings in the District, Circuit or High Courts shall be as informal as is practicable and consistent with the administration of justice. These matters are dealt with under the provisions of section 33 and 45 of the Bill.

The Bill also provides that neither judges hearing family law proceedings nor barristers appearing before them should wear wigs or gowns. This provision is similar to provisions enacted in the legislation of a number of other countries in recent years such as Australia and New Zealand. To ensure that the anonymity of couples whose marriages have broken down is preserved, provision is also made for all proceedings brought under the Bill to be heard in camera— section 34.

Section 35 gives the court discretion regarding the costs of the proceedings. Section 36 is technical. It is designed to simplify legal proceedings, as is section 37 also a technical change.

Part IV of the Bill deals with a number of consequential amendments of existing family law legislation which are required to provide for a consistent legal approach in the area of matrimonial law. Section 38 amends the Family Law (Maintenance of Spouses and Children) Act, 1976, regarding maintenance orders. Section 39 is a technical amendment.

Section 40 is an important section. It protects the welfare of the children. It allows the court to get independent reports from outside experts. Typically, up until now when experts' reports are brought into court these reports are usually partisan. They have been commissioned by one side or other, and, while the competence of the experts is not brought into question, the questions asked and the way in which the agenda is set may very well make these reports less than fully impartial. Under this section the courts can seek independent advice. Under section 40 (5):

The court may, of its own motion or on an application by an order under this section give such directions as it thinks proper to procure a report from such person as it may nominate on any question affecting the welfare of the infant.

Section 41 is on the same topic, dealing with the welfare of the children. Subsection (1) is worth quoting:

Where the court grants a decree of judicial separation it may declare either spouse to be unfit to have custody of any dependent child of the family.

The importance of this arises, and may currently be very topical, where a parent has been deemed unfit because there may be strong reason to believe that that parent has been subjecting the child to sexual abuse. Under present law it is possible that if the spouse who has been given custody in a situation where the other spouse has been deemed unfit to be a guardian should die, the infant or child could revert to the care of the other spouse. Under this section if the court is satisfied about allegations of unfitness it can make other arrangements. This, I believe — and this was agreed in the other House and in Committee — was seen as an important change.

Sections 42 and 43 are technical amendments. Section 44 is slightly convoluted. It states that collusion between the spouses when applying for a judicial separation, except when an application for a decree of judicial separation is made on the ground of adultery and the respondent proves that the adultery was committed with the connivance of the applicant, or any conduct, including condonation or recrimination, shall not be a bar to the grant of a decree of judicial separation.

Section 45 comes back to a point mentioned already, that is, the simplifying of procedures, the introduction of a greater note of informality and in general taking much of the terror out of the courts as far as the hearing of these cases are concerned. Many of us would agree that the trappings of our courts do not sit well on a republican country, that many of the trappings in our courts — the wigs and the gowns and the forced formality, this need to dress up the majesty of the law in these ways — are something which we have taken perhaps too literally from an earlier régime in this country. Most of us would perhaps like to see the simplifying of procedures and the taking away of many of these outdated trappings in all our courts. Certainly, in this Bill, if and when it is passed, the family courts will have none of these trappings and these fearful symbols which are so out of place in courts of this kind.

Section 46 is simply the short title of the Bill.

This then is the Bill which we are bringing before you to-day. It is designed to meet certain very well documented needs. It is based on very detailed research and experience. It has the support of the vast majority of people inside and outside this House. Churches, caring agencies, welfare groups have all welcomed it. No significant voice or group has opposed this legislation. It is not divorce by the back door, nor is it going to open any floodgates and cause marriages to break up. What it will do is alleviate some instances of hardship; it will simplify and humanise procedures which are often outdated and less than fully human. It will make what is always a traumatic and difficult experience somewhat less traumatic and somewhat less difficult. It will eliminate unnecessary cost, it will eliminate some hassle and some expense and, most of all, it will allow very many people the opportunity to rebuild shattered lives with some hope and some decency. It is a good Bill, it is an important Bill and it gives me great pleasure to commend it to the house.

First, may I say that the Minister for Justice, Deputy Collins, is unavoidably absent today and he has asked me to speak on his behalf.

The Government are happy to support this Bill. The Bill has by now a history of its own. There were serious differences in the debates in the other House but I am glad to say that following concerted efforts from both sides those matters were resolved and important changes have been made on an agreed basis. I am satisfied that the Bill as it now stands gives the best possible protection and financial security to spouses and dependent children in judicial separation proceedings.

That there is a need for reform of our separation laws is agreed by all. The Law Reform Commission and the Oireachtas Joint Committee on Marriage Breakdown made recommendations on the matter and the previous Government stated their intention to implement certain changes. There was a specific commitment in the Fianna Fáil Programme for National Recovery and indeed when this Private Member's Bill was introduced the Minister's own proposals for legislation were already at an advanced stage of preparation.

The Minister has a very impressive record of legislation in the Dáil and Seanad. From the start, therefore, he made it clear that the Government had no hesitation in supporting the principle of the Bill but, at the same time, he expressed concern in relation to a number of its provisions which seemed to him to require amendment. The Bill now meets all of these concerns and I intend, therefore, to confine my comments on behalf of the Minister to a few general remarks about the Bill as it stands.

You will no doubt appreciate that when spouses wish to formally separate they normally do so by deed of separation — in other words, they work out mutually acceptable arrangements regarding, for example, custody of children, maintenance, rights of succession, the family home and property in general. In some cases separated or separating couples will, if necessary, have availed of mediation to help them to negotiate their separation terms.

There are obvious advantages in agreeing a separation without involving the courts: it is obviously less costly and it ensures the minimum of distress or bitterness. Court proceedings on the other hand are a last resort, that is, where the spouses cannot agree the terms of a separation. This Bill makes better provision than at present for spouses in that position.

The importance of the Bill is that it provides for an extension of the grounds for a decree of judicial separation; it empowers the court to make various financial and property orders that it could not make heretofore in separation proceedings; and it makes provision for more informal hearings and the use of counselling and mediation services.

The new grounds for obtaining a decree of judicial separation will, in effect, be desertion, separation and breakdown of marriage. The existing ground of adultery remains and, while unreasonable behaviour is ostensibly a new ground, in effect it will replace the old ground of cruelty and unnatural practices in less emotive terms.

I have just a few comments to make on the new grounds. It will probably come as a surprise to some that desertion, which includes constructive desertion, is not a ground at present. Desertion involves the direct repudiation of a marriage and on any view is a long overdue ground for a decree. The ground of breakdown of marriage was recommended by the Law Reform Commission in its report on judicial separation. Before granting a decree on this basis the court must be satisfied that the marriage has broken down to the extent that in all the circumstances a normal marital relationship has not existed for at least a year. The phrase "a normal marital relationship" will present no difficulties to the courts because it is already in common usage in case law in the family law area. It is used to describe the essential obligations of marriage and relates to the duties, responsibilities and indeed benefits of the marriage state.

The position of children is safeguarded in section 3 of the Bill which provides that before granting a decree of judicial separation the court must be satisfied that the arrangements made for the welfare of each child are proper in all the circumstances. This is an important provision in that it will entail the court looking at the arrangements being made for the children, if any, whether or not the parents desire it to do so.

I mentioned earlier that most couples who separate do so under a deed of separation without the need to engage in court proceedings. With this in mind section 5 and 6 of the Bill place an onus on the legal representatives of the spouses in separation proceedings to make them aware of the alternatives to court proceedings, that is, counselling, mediation or, if necessary, a deed of separation. Other useful provisions in this regard are contained in section 7 under which the court must consider the possibility of a reconciliation between the spouses or, in the alternative, mediation leading to an agreed separation and the court will have discretion to adjourn the separation proceedings for these purposes. The important point to note about counselling or mediation is that it is regarded in the Bill as primarily a matter for the parties to decide on; there is no question of any compulsion involved and if it were to be otherwise it would destroy the essential voluntary nature of participation by parties in the counselling and mediation process.

The powers which the court have at present to make ancillary orders in separation proceedings are very limited. The court has no general legislative power to order the transfer of property between the spouses. As regards alimony it can make an order in support of a wife but not a husband and it has no power to award a separate sum for the support of any children. An application for maintenance can be made by either spouse under the Family Law (Maintenance of Spouses and Children) Act, 1976 but the order that is made for the support of a spouse and any dependent children of the family is based on a failure to maintain and that circumstances may not exist in all separation proceedings.

The Bill has none of those limitations. In future the court will have a range of powers available to it to order financial provision and security for a spouse and dependent children. The court will be empowered to order maintenance, as well as secured maintenance — which could continue after the death of the other spouse — to order lump sums, to order the transfer of property or to order that the wife may occupy the family home for life. The court will also have express powers to order the sale of property. The power to order a sale of property will be important whenever the court makes a lump sum, transfer of property or secured periodical payments order, that is to say, whenever it makes an order which involves capital assets.

Section 20 sets out the considerations to which the court must have regard when making financial and property orders and it specifically imposes a duty on the court to exercise those powers in a manner which shall seek to ensure that such provision is made for any spouse and for any dependent children as is adequate and reasonable having regard to all the circumstances of the case. Under the same section the wife's contribution to the family finances and to caring for the family will be taken into account by the court when making financial provision for her following a separation decree.

In deciding whether to make financial provision for a spouse, the general rule regarding conduct in section 20 is that the court will be required to take the conduct of a spouse into account if that conduct is such that in the opinion of the court it would in all the circumstances be repugnant to justice to disregard it. Specific provision is made in the section regarding desertion as a bar to orders for financial provision. However, the rule is not inflexible because the court may, notwithstanding the desertion, order financial provision if it is of opinion that it would be repugnant to justice not to do so. This takes account, therefore, of the situation whereby a spouse although held to be in desertion is not altogether to blame for that desertion. Section 38 of the Bill provides for similar new rules of conduct in relation to maintenance generally under the Family Law (Maintenance of Spouses and Children) Act, 1976.

These are safeguards in the Bill against transactions intended to defeat a spouse's claim for financial relief. These make void transactions intended to frustrate the making of financial relief orders — or reduce the amount that otherwise would be available — in respect of spouses and children.

As regards succession rights, the Bill now ensures that a court may end those rights only when it is satisfied that permanent provision has been made for a spouse, whether on or after the granting of a decree or on grounds of conduct. In some cases permanent provision may not be required, for example, where both couples are young and childless or where a spouse is not a dependent spouse in which case the court could also end succession rights.

These are the main provisions in the Bill as amended which I welcome. As I said at the outset, I have pleasure in supporting the Bill and I commend it to the Seanad.

Like Senator Manning, I am very pleased to welcome this legislation. I attended the open committee meetings when the special committee was meeting and sat in on the debate and consideration of the Bill. Unfortunately, I must have selected the worst days for going because it seemed to be one long harangue whenever I went there. It was like a tennis match, with the ball going back and forth to different sides.

In welcoming this Bill I am aware that its gestation began almost four years ago: in fact, that was the date of the report of the Oireachtas Joint Committee on Marriage Breakdown, it having been set up on 12 July 1983. This indicates the time-span that can be needed to examine, debate an initiate legislation in this very important area of family law. Perhaps it should not have taken so long but the reality is, as we so well know, that this area of legislation is fraught with division, disagreement and argument. It indicates also the great need for all-party agreement on areas like this.

Nothing can be done, or at least very little can be done, if both sides in both chambers tend to take critical opposing positions — very often bitter opposing positions — on proposals for change in such vital human areas of legislation. Given our experience of this and other social legislation, we need an all-party committee on legislation, specifically to create a forum to prepare legislative proposals that can get support on the floor of the House and maximum amount of debate.

This Bill, and others like it, cannot be brought in without a great deal of consultation, negotiation and an attempt to meet the concerns or fears of specific groups. An all-party committee could hear evidence, take submissions and propose directions in a number of areas. At present we still have to bring in legislation on nullity, child abuse, age of marriage, joint ownership of the family home, to mention just a few topics. All of these areas would benefit greatly from having treatment first in an all-party committee on legislation.

After the four years of the all-party committee and their report we have a Bill and it is a very good Bill. It is not the original one which was first put before the Dáil but it is better. I am very happy this is agreed legislation, the result of consensus, because I do not believe that any one person, group or party has a monopoly on wisdom and the objective of parliamentarians should be to use the combined wisdom, talents and experiences in both Houses for the common good. I hope this will be the first of many Bills brought forward in this area with agreement. Indeed, it may be a case of making a virtue out of necessity, with a minority Government providing in the long run a positive legislative programme in conjunction with, and in many cases initiated by the Opposition parties, and with the active participation of people in those parties.

I am a former Dáil constituency colleague of Deputy Shatter, the initiator of this Bill, and he is to be congratulated on his achievement. Indeed, I regret the Minister lacked the generosity to mention his name in the speech: perhaps it was an oversight. Alan Shatter is somebody I have known for a long time, long before both of us went into politics, and we ran campaigns in tandem on the whole area of family law reform way back in the seventies before we had the three main pieces of legislation that were introduced at that time. His commitment to this matter stretches very far back before he became a TD. Having said that, I have also to commend the Minister for Justice Deputy Collins. He has given a lead also in this area. He could have held firm, he could have refused to allow the Bill to proceed, he could have used various political tactics to block it and then just sat back and waited for the dust to settle, and I suppose inevitably it would have done. I am happy he did not do that and I appreciate his position in this respect.

It was most regrettable that some of the disagreement during the debate on this legislation surfaced in the letters page of The Irish Times. It was very convoluted technical stuff in those letters and I do not think it will have swayed opinion in any way. It achieved little except to confuse people even more than they were confused about the very technical area of family law. I do not want to dwell on it and I certainly do not want to labour the point but it seemed to relate to the word “irretrievable” Thankfully, the matter has been resolved in the Bill before us and, as I said, we need not re-run the old arguments.

Prior to entering politics, my background was much involved with the need for reform of family law with AIM group, a voluntary organisation which helped then, and still does help through its women's centre, women with marital problems. I know the great need there is for the provisions of this Bill. Again and again, women whom I met in the centre found to their total disbelief that although their marriages had deteriorated to an intolerable degree they could not separate legally. A separation under current law is only possible if the other spouse commits adultery, is guilty of unnatural practices or cruelty. Many of the thousands of wives and husbands in broken marriages want the possibility of obtaining a legal separation. They want it to have judicial recognition of the fact of the breakdown or separation.

Indeed, many thousands of women getting deserted wives' allowance, because their marriages have broken down, are recognised as having a broken marriage by the Department of Social Welfare for the purposes of the payment but cannot get judicial recognition for that fact. This Bill will change all of that, opening up possibilities for both parties to a broken marriage in many different circumstances. I am confident that in obtaining a decree under the new Bill lawyers will no longer need to identify one or other of the spouses as solely to blame for the breakdown and this is one of the most important achievements of the Bill. This practice has in the past put down such a bitter foundation for the separated family that normal relationships have proved impossible. Unfortunately, it is very often the children who have borne the brunt of this bitterness and antipathy.

I welcome particularly the proposals in Part III on court jurisdictions. We have waited a long time for the provisions in section 33. Nobody operating in the social and legal area of family law will be anything but pleased with these changes. I trust this will lead to the establishment of a legal sector that recognises the need for vital back-up services working in cooperation with the courts.

It is indeed good to see in the Bill the provision to ensure that couples presenting for a separation decree are made aware of reconciliation proceedings as in sections 5, 6, 7 and 8 and that certification is required. Again, I was interested in the Minister's speech in that he has mentioned several times the matter of reconciliation and mediation. One tends to be cynical about the operation of such a process as certification in this instance. It could become an empty format unless it is monitored, assessed and reassessed. I hope that given the cost factor for legal fees, which I will speak about later, it will not lead to a situation, now practised by one leading firm of solicitors, where clients who show an income of £20,000 or more, get legal action and get the service of the solicitor but persons on less than £20,000 are despatched off to the mediation service and it is deemed to be more suitable for them. I am not suggesting that it is directly because they have less income but that is the way it seems to be working. Of course, the mediation service — the pilot scheme — through the Department of Justice is now free.

Most people know my vested interest in this area. In 1986 I set up a three-year pilot scheme of mediation which has run very successfully in that time and is due to finish and report in September next. At the time it was set up in 1986 there was very strong opposition to the move. Many critics said it would be too limited a scheme, that there would not be enough resources for it and just to forget about it while others said there was no need for it at all and that people would not use it. I have to say that at that time my success in achieving the establishment of the scheme was due directly to the commitment and support of the Taoiseach at that time, Deputy Garret FitzGerald, who understood what I was attempting to do and gave me all the backing I needed. There were many very keen, dedicated people in Ireland who saw it as the most relevant way forward for couples in marriage breakdown.

It operates only for people who acknowledge that their marriage is at an end. They then go in agreement together for mediation and with a trained mediator negotiate and agree on conditions for their separated state, on maintenance, property and their children. This scheme must be secured. When it was initiated and set up first there was no immediate sign that there was going to be legislation as firm and definite as this Bill. I hope the Minister will now take the practical, long-term view and plan for its expansion and its extension in the same or similar form as it is in now. There is no doubt it has proved itself; it has brought harmony and agreement into the area of marital breakdown with very good spin-off effects for all but particularly for the children.

Marriage breakdown is a tragedy. A family going to live their separate lives a distressing thing to see but it can be made more bearable and more agreeable through mediation skills. I am pleased that due to foresight and perseverence at the time the mediation scheme was established it is now in operation and its continued operation will be essential for the working of this Bill.

I would like to propose an elaboration of section 5 with regard to the provision of mediation. It should be available on a means test, as is free legal aid. This is something about which many people have expressed a view and a concern. We have to address it now and set down a marker for what will happen in the future when the Bill is in operation.

While I welcome the Bill and all its provisions, I am deeply concerned about the costs involved. I sympathise with those who wanted to have these actions brought to District Court level but they were not considering the total implications of the matter and the big risk would have been that the quality of the justice would suffer because of lower cost. Of that I am quite convinced. At present the legal costs in family law cases are horrendous and we cannot just turn a deaf ear and a blind eye to them. Of course, lawyers are entitled to a fair and just financial return for their work, but can they justify the extraordinarily high charges?

This particularly hits wives, women who have devoted their lives to their homes and their children, and who have not any independent means of income. When they come to seek legal aid — and more and more of them will seek legal aid under this Bill when passed — they are in a position that the only money they can call their own is the children's allowance money. I hope that is not under threat as we believed it was earlier in the year. How can they go independently and seek to have a separation decree on the basis of that? Many of these women get into intolerable debt to pay the legal costs, some even on or before the first consultation as many solicitors seek a substantial down payment and will not move on legal action until they see the cheque.

This question has to be addressed. It is fundamental to the introduction of this legislation. Otherwise, we could be creating a law for the rich and none for the poor. There will be a deep and profound opposition if this legislation, when passed, is outside the reach of the majority of people. Perhaps we should look at the establishment of the new family court and keep in mind that it will mean substantially increased business for solicitors involved in family law and perhaps a scale of fees might be drawn up or looked at in that context.

Finally, one of the most important results of this legislation could be that when in place with the new courts structure, its effectiveness, its deliberations and its success will hold up a mirror to Irish society because it will be possible to assess and identify the widespread problems of marriage breakdown. The inevitability of the need for divorce legislation will emerge. At the present time we have a devastating array of solutions to broken marriages where married people no longer live together. Some have church annulments and second church marriages, some have legal annulments and second marriages, while others have foreign divorces, many of which are not worth the paper they are written on, and are remarried abroad. Very few of these couples are fully aware of their standing in law. The sad reality is that in most cases their new unions have no legal status or legal protection.

More than anything else, we now need some form of statistical information and a research facility to ascertain the extent of the problem, which will give clear facts on different forms of separation on what is happening to families in this country, on second unions and the status or the value of marriages after an annulment here or a foreign divorce is recognised here or whatever. The welfare of the family is vital and the difficulties experienced by family members in a marriage breakdown can cause widespread unhappiness and depression.

Profound change is happening within the family unit and we need to understand this change. Therefore, we need to identify the difficulties and the policy changes required. The Bill before us is a very fundamental part of that change. I look forward to discussing it in more detail on Committee Stage. I welcome the Bill and wish it a good passage through the Seanad.

The initial reaction to the arrival of this Bill in the House must be one of relief. During the protracted and often tortuous negotiations it seemed as if agreement was to elude the parties involved. For many estranged couples viewing the process it must have added to the unhappiness of their lives and that of their children.

When one sees the comprehensive provisions and modern framework of the Bill the two principal negotiators, the Minister for Justice, Deputy Collins, and Deputy Shatter, are to be complimented on the product of their discussions.

I am particularly pleased that the Bill encourages reconciliation in a formal way. This principle is one towards which all Irish people would aspire. Up to now it has been the regrettable experience that the judicial system to a large degree has discouraged the parties to a marital dispute from seeking a reconciliation. Frequently legal advisers are constrained to advise such parties not to seek a reconciliation because to do so at certain stages in the proceedings would, in their view, prevent them from obtaining their legal rights for which they enlisted the help of professionals. It is heartening to see that the Bill seeks to remove the old conflict which existed and puts in its place more humane provisions which facilitate those couples whose marriages could be saved with a bit of effort.

I adverted earlier to the negotiations which took place. It is indeed satisfactory to observe that these led to some necessary amendments to the original Bill. Of particular significance is the agreement on providing protection for children. As many Members will know, children suffer most in many cases of marital difficulty. For a Bill such as this, which provides a code for separation relevant to the modern age, to have omitted such provisions would have been little short of tragic. The Minister's concern that the position be certified is to be commended.

Comment must be made on the sections dealing with succession rights. Prior to consultation, a court would have been compelled to decide at the time of the granting of a decree whether adequate financial provision could be made for a dependent spouse and, consequently, whether it should end succession rights. The implication of this would have been that the court was prevented from making better provisions for a spouse at a future date. Even more disturbing was the likelihood that a husband would normally have kept his succession rights when a wife would have lost hers. Given the vulnerable economic position of many women in Irish society, the inadvisibility and inequity of this state of affairs are evident.

Under the amended version of the Bill, there are three cases in which succession rights will be ended by a court: (a) when it is satisfied that permanent provision has been made for a spouse; (b) where a spouse is not a dependent spouse or permanent provision is not required; (c) where the conduct of a spouse is repugnant to justice. These new conditions take account of the economic reality of today. Especially in difficult times, it is a hallmark of a just society that the best possible financial security is given to dependent spouses. In addition to a failed marriage, the future of a person should not be dogged by deprivation.

Attempts were made in the Dáil to give jurisdiction to the District Court to deal with marriage breakdown. While one has sympathy for those who find it difficult to afford legal fees, one must be careful lest the effectiveness of the Bill may be undermined by attempts to alleviate such problems. Frequently a principal reason for going to court in cases of marital breakdown is a concern for property. Should jurisdiction be given to the District Court in relation to this area it would introduce a new departure of questionable desirability. The decision not to give the District Court this jurisdiction was a wise one.

The Bill is a timely and valuable addition to the family law legislation of the State. It provides in a rational and humane manner for the plight of those whose misfortune it is to be locked into a failed relationship. I wish the Bill a speedy passage through the House.

The Labour Party welcome this Bill although we have a few reservations about it. I will deal with those by way of amendment on Committee Stage. I commend the mover of this Bill, Deputy Shatter, and compliment him on the painstaking efforts he put into compiling this legislation which got the agreement of the Government who were inactive in this area. I am glad that Deputy Shatter used the procedure to have this Bill recommitted when it was obvious that the relationship between himself and the Minister for Justice was at the stage of irretrievable breakdown. It is appropriate also to put on the record that this House on several occasions last year used the same procedure to recommit a Bill to allow for further debate and amendments.

It is welcome that political parties in Opposition have a facility through the legislative process to bring legislation before the Houses. That prompted my question this morning. If another political party in another place who do not have Members here had Private Members' Bills passed through the other House they would die a sudden death because there would be no procedure available to them to follow the Bill through to this House which they consider to be an unnecessary part of the legislative process.

It is not often we have the opportunity to welcome Private Members' Bills in the House. It is also appropriate to put on record that recent statements from the Government side which refuted the rights of other people to bring forward legislation were questioned and that accusation has for once been put to rest. On many occasions, my colleague Senator Brendan Ryan has made efforts, as an Independent Member of this House, to bring forward legislation. He may not have been successful but I respectfully suggest that his efforts stirred into action not only this Government but previous Governments to bring in legislation in the areas in which he had an interest. That is what Deputy Shatter has done in this area: he has stirred the Government to act in an area where they were dragging their feet.

We had a referendum which addressed the problems of marital breakdown, irretrievable breakdown of marriage and all the other family problems that are rampant today. Those of us in political life who meet on a weekly basis, an ever-growing number of people in these circumstances realise that the State has an obligation, through the legislation process, to address the problems of broken marriages. We would wish that it did not arise in a Christian country but every week we are confronted with this problem.

One must ask what function members of parties have in the area of marital breakdown. It would be expected that legislation, marriage counsellors or social workers should deal with it but, for some reason, people come to politicians to discuss the implications of marriage breakdown. These normally transpire to be of a financial nature because usually the husband has reneged on his responsibilities, leaving a wife and family with no obvious means of support. Sometimes he has disappeared out of the jurisdiction and leaves his family penniless. We then have to bring the offices of the State into play to support them by way of payment for deserted wives and also supplementary welfare payments to tide them over their difficulties.

There are other problems where the husband through his behaviour makes it impossible for the wife to remain in the house. She is forced onto the housing lists of local authorities who are trying to come to grips with the situation. At times they are faced with housing both the husband and wife in certain areas. That is an extraordinary situation but it is one we hear about on a weekly basis. We are living in cloud-cuckoo land if we do not accept that there is a problem. It does not give me any pleasure to put that on the record of the House but it is a problem we must face.

Welcome and important as the Bill is, the benefits under it will be beyond the reach of many of the people I talk about. Many of the people in the social welfare categories whom I represent do not have the facility or the financial ability to go through the legal procedure outlined in this legislation. A conservative estimate of the cost is between £1,500 to £2,500 to go through this procedure in a court hearing for a day. How many people who are so unfortunate as to have a broken marriage or a marriage in difficulty and who need to address the problem can afford to do this?

This point was touched on with a certain degree of knowledge and sympathy by Senator Fennell. We have problems in that regard because from what has been communicated to us by professionals in the field there is no way, given the present funding of the Legal Aid Board, they can take on board the additional demands that will be made on them.

I will quote from the Legal Aid Board Annual report of 1986 which is now almost out of date but the sentiments are still very relevant. I quote from page 16, section 8.1 where they refer to law reform and the effects on the legal aid system. They quote the final paragraph of the board's last report which stated:

The recently-announced intention of the Minister for Justice to reform family law is most welcome... The Board has to make the point, however, that reform of family law will, unfortunately, not be of very much benefit or relevance to a great many people unless, at the same time, a serious commitment is made to provide adequate staff and adequate funds for the expansion of the legal aid service. Unless the necessary resources are provided, the Board will be unable to make... effective access to legal aid services available to those who need them.

In section 8 (2) they point out that:

The central point — that law reform, especially family law reform, has an impact on legal aid — needs to be emphasised again. If the reforms of family law currently before the Oireachtas are enacted, there is no doubt that many people — perhaps thousands — will seek legal aid to avail themselves of the new provisions; and there is no doubt either that, without additional resources, the Board will be unable to meet their needs. There is already a queue for legal services; the anticipated demand likely to be produced by the proposed legislation will lengthen this queue to an extent that will make its anticipated advantages illusory for a great many people.

That is a statement from people who deal with those who cannot afford the facility of employing a barrister to represent them in court. In this year's Estimates, as passed in the Dáil, the allocation for the Free Legal Aid Board was reduced by almost £2 million. We must address this problem. We are doing an injustice to those who cannot afford to avail of the structure we set up unless we address the problem and ensure that free legal aid is available to them or that their case can be heard at District Court level.

The thrust of the Bill is important. While it would be unfair to criticise the terms and conditions laid down in the Bill, particularly those relating to maintenance and payments, unfortunately our experience in this area is that irrespective of what agreements are made in court or registered by courts requiring one spouse to maintain the other and also to maintain their children by way either of lump sum payments or continuing payments, the numbers who default on these agreements are extensive. Anybody who deals with people on social welfare incomes knows they are unable to meet the requirements laid down by district justices and justices in family law courts. We have a problem in that the State, to a limited extent, will provide the legal machinery and the legal structures and the court will make decisions but court decisions have proved in the past to be extremely difficult to enforce, particularly where the spouse leaves the jurisdiction. Perhaps with the equalising of taxes in 1992 and the implications for all the countries involved Governments will ensure that those who are dependent on maintenance will not go hungry and will not be forced, as they are now, resort to begging for supplementary welfare.

There is no point in setting up a grandiose system of legal processes unless we can enforce the findings of the courts and unless we can ensure that applicants have the fullest access to the courts. I have expressed our reservations about the ability of people to do this. Justice has to be seen to be done and it has to be capable of being implemented and availed of by everybody irrespective of their family means. Surely in a Christian country that professes to help women and children, we cannot allow ourselves to treat some sections of society differently from others; we cannot have access to justice based solely on ability or means to pay.

To a large extent, many people who are suffering at present from marital breakdown are on social welfare benefit, where unemployment possibly contributed initially to the breakdown of the relationship and the marriage. I suppose ten or 15 years ago none of us would listen to the possibility of this ever happening in Christian Ireland but it is happening and I regret it. There are times when you feel helpless in trying to advise people which way to turn in these difficult situations. At least now we know there is a judicial process which is available, but let us be honest and try to make it available at a level where applicants can use it.

District justices deal with these cases effectively and compassionately. Every month and week in rural Ireland where there are family courts and District Courts, justices are competent, capable and compassionate in dealing with applications for maintenance, barring orders and so on. They are already dealing with such cases. We realise you cannot apply the rule of thumb to all applicants but if the process was available at District Court level for £15 or less it would be possible for people to make a personal application to the court and get the fullest co-operation at that level.

The problems of legal separations — arranging terms concerning the home, who is responsible for the children and all the other processes — are being addressed in an expert way at district justice level. I do not feel there is any danger to the concept of the Bill by having cases heard in a lower level of court. It certainly would make it financially accessible to the people about whom I am concerned. There is nothing worse than knowing there is a law of which only the rich can avail. That creates a sense of isolation for people who are already trying to come to grips with the fact that their family unit has broken up, their marriage has broken down, their children are left without a father and all the other dreadful things that happen when a marriage breaks down.

I welcome the legislation but I ask the Minister to seriously consider the points that have been made, not alone in this House but in the other House by the Labour spokesperson on Justice, Deputy Taylor, who dealt with this problem but who did not get the type of support we hoped he would get. Perhaps in the meantime the Minister for Justice, the Government and the Attorney General's Office will deal with the concerns we have expressed either by adequately funding the Legal Aid Board or by having certain cases heard at District Court level.

I welcome the Bill in general and congratulate Deputy Shatter on his efforts in this regard.

I am glad to have this opportunity to welcome the Bill. It has developed a particular history of its own. Many people who care deeply about reform in this area held their breath over a period of almost one year while this Bill wound its way between the Dáil, a special select committee, back into the Dáil and back into a special committee again. It is with a sense of great relief and pleasure that I welcome it into the Seanad and also the opportunity to speak briefly on it. I imagine that on Committee Stage there will be a more detailed exposition of the different facets of the Bill. As somebody who sat for a lengthy period on the Oireachtas Joint Committee on Marriage Breakdown I look forward to that type of detailed assessment in due course.

This legislation will have a profound effect on the thousands of people who are locked into marriages that are dead in all but name and who need an adequate legal redress to enable them to cope with their difficulties. By and large, the Irish Legislature has not served these people well. A situation of hypocrisy and pretence has been forced on people who would have had recourse to the legislation had it been sufficiently adequate to meet their needs. This type of progressive enlightened legislation is just the kind of measure which is needed to give these people the sort of legal status their situation demands.

The genesis of the Bill is in the report of the Oireachtas Joint Committee on Marriage Breakdown which reported on 27 March 1985, almost four years ago. I cannot help but feel a sense of frustration at the length of time it has taken for legislation to emerge as a result of all the consultation and deliberation which went on in that period. Contrary perhaps to popular belief, that all-party committee did not merely address itself to the question of divorce which has been momentarily put on hold in Irish society but, in fact, it examined every single facet of marital breakdown and brought forward a great deal of most important and significant recommendations.

I warmly congratulate my colleague, Deputy Shatter, on having the tenacity and the single-minded vision to pursue the important recommendation of the all-party committee and to be the instigator and author of this Bill. For him, what has happened has been a personal triumph and it is important that that fact be put firmly on the record of this House. It is the first time in over 30 years that a Private Members' Bill put forward by an Opposition Deputy has been passed. I am confident that it will have a speedy passage through the House and it will be on the Statute Book very shortly.

What is on offer today in this legislation is a modern framework for separation laws. It is a major step forward in enlightened, progressive, and indeed sensitive social legislation. Without wishing to unduly politicise the issue, I state quite firmly and categorically, and the record proves the fact, that Fine Gael are a party who are progressive and enlightened in the area of social legislation. They have given witness to that over and over again and have received enormous support from the electorate by virtue of that fact. They will continue to do so because in this area we lead. We give the lead and have brought forward important and significant measures.

There is another ample illustration of that here today in the House, witnessed by the fact that we on the Fine Gael side of the House have speakers who are prepared to come into the House and speak compassionately on this Bill and address the issue. Without wishing to be churlish in any sense I cannot but express a certain feeling of unease, disappointment and dismay to see so few people on the Government side and to see that there are not more people willing to participate in this debate, to make known their views as to the importance of this legislation and the need to have remedies on our Statute Book which adequately address the problem of judicial separation. It proves the fact that there is a certain unwillingness in the Fianna Fáil Party to deal adequately with——

An Leas-Chathaoirleach

I am loath to interrupt the Senator but it is unusual to comment on the presence or absence of Members.

I accept that but there is such a void there that I could not but make some comment on it. The aim of the Bill is to provide a civilised and non-confrontational way out for couples who are obliged to have recourse to the law to sort out their difficulties and to disengage from a failed marriage. For couples who find themselves in this predicament, the situation must be extremely painful indeed. There is not a person who has not got experience of friends, family or personal experience of coping with this situation. It is facing a sort of death in a way because it is the death of hopes, dreams, ambitions, aspirations and the death of a certain phase in one's life. To come up against an unfeeling legislature in this area or an inadequate one is just the last straw altogether. This has been the experience of so many people who have found themselves in interminable and painful courtroom wrangles in order, in a civilised and meaningful fashion, to bring about an end to a failed entity.

This Bill allows the granting of a separation order by the courts after a normal marital relationship has ceased to exist for at least one year. The law cannot ignore the fact that marriages in Ireland are breaking down on a daily basis. We may wish it to be otherwise but that is beside the point. Couples are separating and they are forming new relationships and, indeed, often second families. We have a great deal to do in this area in bringing forward reasonable responsive legislation which meets the requirements of the electorate and indeed the citizens of this country.

Many people who have spoken have attempted to analyse the reasons why there should be so much marital breakdown in the country. Most people's views are, largely speaking, impressionistic because there has been very little real research of any substance carried out and very little collation of information and statistical evidence which would help us to frame preventive measures and also measures to cope and deal appropriately with the problem which all of us recognise. We are all long on description and on impressionistic analysis but short on statistical hard evidence which would help us to analyse the problem and address it competently.

I hope that the Minister will indicate that this measure has acted in some way as a spur to Government to bring forward more measures in the area of legislative reform as it affects marriage. So much needs to be done and a lot of it is fairly straightforward and simple. For instance, legislation in the area of the minimum age for marriage does not strike me as being something that would cause the kind of extraordinary prevarication and difficulty with which this legislative measure engendered. Everybody has agreed — the Law Reform Commission, the Oireachtas Joint Committee on Marriage Breakdown and all independent commentators — that the minimum legal age for marriage, which is now 16, should be addressed urgently. I hope that a simple measure on that is something that Government can deal with.

It is a pity they had to be provoked into coping with this legislation. It is yet another example where if only the Government could realise that in some areas a decent working consensus can be arrived at, given their minority position and that the fruits of that could be good legislation, which in this case — due to the staying power of Deputy Shatter — has been the case. In his absence I compliment the Minister for Justice, Deputy Collins who eventually co-operated, when they hammered out together a useful consensus which will bring so much relief to so many people.

I would like to comment on the elements of reconciliation and mediation which are contained in the Bill. I wonder if the Minister, in his reply would indicate whether further funding will be forthcoming from his Department for reconciliation and mediation services. When some people speak, there appears to be a certain confusion between the two services. It is important to recognise that some people will benefit from reconciliation services. They will be enabled to see their problems in a more objective and dispassionate way, perhaps seeing possible solutions which will affect the patching-up and/or possibility of their marriage remaining intact. Others will need the assistance of an experienced mediator who will help them analyse their problems a mediator who can assess the needs of the husband and wife and, what must never be overlooked, those of the children who find themselves willy-nilly in circumstances in which their security is being threatened and their family unit undergoing a dramatic change. I do not think the Minister should stint at all in this regard.

From the very beginning, there should be liaison between many Ministers in this area. I would put in the front line the Miinster for Education because education in relationships cannot begin early enough. Ideally, it begins in the family. Children learn from observation in their homes how relationships work or do not work, what can go wrong within a relationship, they absorb it through their very pores. All of us who have grown up in families know that what I say is so. In primary schools, following through into secondary schools, there should certainly be an element in our education system which affirms the values to which we all subscribe, values which put a premium on love, cherishing, caring and nurturing. These values should be upheld for our children and before them. Should problems arise in these areas, then ways of coping with them should be suggested. There should be a lot of debate, discussion and examination of relationships in our schools system at primary and secondary level. I stress that it is not too early to begin at primary level.

That being said, my comments are more general than specific. I look forward to Committee Stage when we can question the Minister and tease out various aspects. We on this side of the House fully support the Bill. Nonetheless it is useful to question and seek clarification on its different aspects. I hope the Minister can indicate when he expects this Bill to be enacted. Many people are awaiting its enactment before pursuing their family cases through the court and would like to feel that its provisions will be available to them. It is important that we be given a clear indication of when this Bill will be on the Statute Book. That being said, I congratulate all concerned, particularly Deputy Shatter and the Minister who got together so that eventually this Bill saw the light of day.

I should first like to repeat the last words of Senator Bulbulia and to congratulate Deputy Shatter, the Fine Gael Party and anybody who had a hand in the drafting and production of this Bill. I do not feel that so much congratulation is due to the Government side because to my mind their acceptance is reluctant and somewhat grudging. Also, one can say it has been forced upon them. I do not believe such a Bill would have been introduced without Opposition initiative.

It is very unsatisfactory that we must have a Bill in this form because it is a compromise. It is only another item in the long, contorted difficulties we have experienced here vis-á-vis marital breakdown. In essence, in spirit and in detail it is a good Bill. It is the circumstances in which it has been introduced that I regret. Although not long in this House, this topic has presented great difficulties for all parties. It would be much easier for all of us if this Bill were being introduced in the context of a recognition of the breakdown of marriage and the introduction and allowance of divorce in this country.

Before its introduction it was a pity the Government did not propose another referendum to delete that Article of the Constitution which prohibits divorce. As Senator Bulbulia pointed out it could be noted without being out of order, a Leas Chathaoirligh — that those great defenders of marriage in this country, have had sufficient interest in this Bill to provide one Member only at a time to see it through. It is significant that this Bill is something they would rather see swept under the carpet, got through and dispensed with. While I welcome the fact that in this Bill the grounds for judicial separation have been extended to include breakdown of marriage and desertion, and while I congratulate the Opposition on forcing it through and on acting properly in the circumstances in which they find themselves, we would not be in that position had not the Government, who were in Opposition at the time, played footsie with the Catholic Church and opposed the referendum on divorce.

I welcome the fact that this Bill has been accepted by the other House and that there has been agreement between the Government and Opposition on its main contents. Having thoroughly read the report of the Oireachtas Joint Committee on Marriage Breakdown and contributed to it I am all the more aware of the many difficulties people face in marriage. Everybody enters into a marriage contract in the hope it will succeed. Indeed, it has to be said that the majority of marriages are happy and successful but some through no fault of the partners, are not successful. Such people must be afforded some relief under the law. I accept what Senator Ross said, that it is a pity in this country we have no provision for civil divorce. It is my belief that in not allowing that facility we are undermining the institution of marriage itself.

Hear, hear.

If we sweep the problems under the carpet, allowing people who have contracted marriages to enter into extramarital relationships and have children who have no protection under the law, then we are merely creating difficulties for ourselves in the future. That is why I contend the absence of such a provision is an attack on the very institution of marriage. I should like to see the civil law separate and distinct from ecclesiastical law in this respect.

The provisions of this Bill offer additional remedies to the parties to marriages that have not succeeded. To date the law made limited facilities available to people to take proceedings whereas the provisions of this Bill augments those facilities. While irretrievable breakdown has not been invoked, if it can be proven to a court that a marriage has failed, people will be entitled to a decree of judicial separation under its provisions, which contain many good aspects. I know it to be true that people whose marriages are failing do make an honest effort to have them succeed. For instance, take the case of someone who has committed adultery which constitutes one of the grounds for a legal separation. If the spouses are reconciled afterwards and the marriage fails at some future date that case of adultery can be held against them in the courts. I understand that that problem has been overcome in this Bill. That is very important.

We must afford people every opportunity to come to terms with their marital problems before asking them to separate. For that reason I welcome the provisions of this Bill. In the circumstances in which we must draft legislation it is a limited step in the right direction. We must remember also that the referendum Senator Ross sought was put to the people and we must also bear in mind their views on the matter. The people decided against divorce in the referendum put to them and we must acknowledge that fact.

This Bill before the House is very welcome and will help to alleviate many people's problems. Equally, its provisions will allow people who have separated, whose marriages have broken down, to behave in a civilised way, meeting and talking to each other. That is very important for them and their children. If its provisions encourage them to do that, then it is all the more to be welcomed.

I should like to thank all who contributed to the debate and the very supportive remarks of all speakers on this Bill. The fact is that very few points of specific disagreement were raised by any speaker. Therefore, it will be possible for me to conclude very quickly indeed.

At the outset I have to express my sense of regret at the opening remarks of the Minister of State at the Department of Health. He should have found it possible to have indicated some sense of the part played in all of this by Deputy Alan Shatter. This is a Fine Gael Private Members' Bill. It was initiated by Deputy Shatter. It is a Bill which has gone through a very lengthy process in the other House. It is a Bill which has involved members of all parties, because this problem and its solution does not belong to any one political party. All parties have participated very fully in the debate. There has been a great deal of give and take and that give and take emphatically included the Minister for Justice. It is regrettable that, on an occasion like this, the Minister of State did not appear to have the generosity to acknowledge the part played by Deputy Shatter in having brought this Bill through some very difficult times to the point today at which it is close to finding its way onto the Statute Book. I have to say that Senator Cullimore was generous in his remarks.

Senator Fennell drew heavily on her very considerable experience in this area because, as is well known, she was an advocate of change in this area at a time when it certainly was not popular or profitable to political reputations. She has a very deserved reputation and her remarks certainly bear consideration. The question which she raised of legal fees and the alleged £20,000 barrier — which she claims has been set up by some members of the legal profession — is one which, regrettably, is for the legal profession. It is a question that body should examine. Her concern about very high legal costs in matrimonial cases would be shared by all parties in this House. It is important that there is a monitoring procedure established to ensure that one of the main purposes of this Bill, which is to simplify the law procedures and reduce the costs, becomes a reality.

Senator Fennell also made the point that the provisions of this Bill will help to identify many of the real problems. She claimed that nobody viewed this Bill as a panacea; it is a device to help people solve specific problems. However, she felt that perhaps the problems were so great that, ultimately, the logic of having civil divorce legislation will be unquestionable. That may well be. Senator Ross made the same point. My feeling is that, following the referendum last year, that question is fairly much off the political agenda for the foreseeable future.

As somebody who spoke and campaigned for the introduction of civil divorce last year — and would do so again should the matter be on the agenda — I believe that perhaps for the moment the time is not right to put this matter back at the top of the political agenda, that more time must pass. I suppose many of us who campaigned at that time must be forgiven a wry smile on reading the remarks of the Cardinal Primate of Armagh, Dr. Ó Fiaich as reported in the Sunday Press a few weeks ago to the effect that apparently he is now having second thoughts about the role he played in that matter. When the occasion next arises perhaps we will all have learned.

Senator Cullimore referred to succession rights. Senator Ferris concentrated to some extent on what will be the substance of amendments put down by his party on Committee Stage, that is the need to extend the provisions of the Bill to the District Courts. At this stage it may well be possible to have some discussions, as Senator Ferris suggested, between the Minister, the Attorney General and the Opposition parties to ascertain whether that point can be accommodated. My feeling is that it has been debated exhaustively by the Special Committee and on Report Stage in the other House and that perhaps all of the arguments put there have been met. In any event this can form the basis for some discussion between the various groups between now and Committee Stage.

Senator Bulbulia expressed a sense of frustration which many people have felt at the delay in bringing the remedies which were identified four or five years ago to the stage at which they are ready to be enacted. We have known for some time what needed to be done. She said it is no great reflection on the Houses of the Oireachtas, and on some of the leaders there that it has taken so much time. Senator Bulbulia also mentioned questions which I am sure the Minister — as the person responsible for the implementation of this legislation — will bear in mind, that is problems to do with funding and liaison between various ministeries.

I referred to a point made by Senator Ross already, that is about this Bill being half-way legislation and contending that there is a need for full divorce legislation. I should like to conclude this stage of the debate by saying that I do not believe this Bill could be described as half-way legislation. In the circumstances prevailing and within the limits of what was available, Deputy Shatter has produced a Bill which goes a very long way to meeting many of the current problems. It simplifies procedures, it ensures that the courts will be much more informal and it provides secrecy and privacy for those involved. It means also they will not form part of a long series of other cases.

The system also provides a whole range of new safeguards. It is designed to cut costs, reduce delays, and avoid duplication of procedures. It is designed to do all of these things. As Senator Bulbulia said, it is designed to provide a proper, modern framework within which separation laws can operate in a way which helps to alleviate problems, minimise costs and reduce formality. It also ensures that people who have been or are going through the trauma of a broken marriage and a separation are given as much help as possible in bringing matters to a speedy conclusion, ensuring that property rights are properly discharged and that the question of the care and custody of children is decided in a proper manner. Ultimately, it allows the spouses and children an opportunity to remake their lives with some degree of peace and dignity.

May I conclude by thanking all of those who participated in this debate and the Government for having made Government time available for this Private Members' Bill here today. I believe that this Bill a milestone in the history of Irish family law reform. It is a substantial Bill and the fact that it has come to this stage in the form of a Private Members' Bill ultimately reflects credit an all parties and both Houses. I commend the Bill to the House.

Question put and agreed to.

When is it proposed to take Committee Stage?

Next Wednesday.

Acting Chairman

I am advised that if it is ordered for next Wednesday it cannot be taken before then. I am also advised that it does not have to be taken on Wednesday next.

Committee Stage ordered for Wednesday, 8 March 1989.
Sitting suspended at 4.55 p.m. and resumed at 6 p.m.
Top
Share