As the substance of the debate on the Bill will relate to the wording of the proposed constitutional amendment contained in the Schedule to the Bill and since it would be appropriate to have that Schedule decided upon before deciding on section 1 of the Bill, which actually provides for its insertion into the Constitution, I am suggesting that the House postpones consideration of sections 1 and 2 of the Bill until after the Schedule shall have been agreed. This is a procedure which has been adopted on Committee Stage in the Seanad in the case of previous Bills to amend the Constitution and which, I suggest, would lend itself to a more a logically ordered debate. I would, therefore, formally ask the Leader of the House to move, in accordance with Standing Order 86, that consideration of sections 1 and 2 of the Bill be postponed until the Schedule shall have been disposed of.
An Bill um an gCúigiú Leasú Déag ar an mBunreacht (Uimh. 2), 1995: An Coiste agus na Céimeanna Deiridh. Fifteenth Amendment of the Constitution (No. 2) Bill, 1995: Committee and Final Stages.
An Leas-Chathaoirleach
I move:
That consideration of sections 1 and 2 of the Bill be postponed until the Schedule shall have been disposed of.
An Leas-Chathaoirleach
Amendment No. 2 is an alternative to amendment No. 1 and both may be discussed together.
Tairgim leasú a 1:
I gCuid I, leathanach 7, líne 7, "go follasach" a chur isteach in ndiaidh "ina gcónaí"
agus
I gCuid II, leathanach 7, líne 22, "demonstrably" a chur isteach i ndiaidh "have".
I move amendment No. 1:
In Part I, page 6, line 7, after "ina gcónaí" to insert "go follasach"
and
In Part II, page 6, line 7, after "have" to insert "demonstrably".
I suggest this amendment partly to at least clarify in my own mind what exactly the precise meaning of the phraseology in the constitutional proposal is and how, as far as possible, the Minister envisages it working in practice.
I have read — because I do not wish to be disputatious — the Minister's contribution on Committee Stage in the Dáil where this issue arose. His answers were helpful but they left a substantial grey area as to how this is likely to work in practice. I am not a lawyer but there is considerable uncertainty. It is an uncertainty that goes beyond a form of words and raises questions about whether the Government's intention that divorce will not be quickly or easily procurable under this amendment will or can be adhered to in practice.
The type of situation that occurs to one — and this is not meant to be exceptional or esoteric — is where two people have decided that they wish to divorce or to have the right to remarry and decide to agree in assuring the court that they have been separated for four years. What mechanism does the court employ to test that claim if the two people involved make that statement? They have come to an agreement that they want out of their marriage. I am not convinced by the Government's case in general but if one is to proceed with this — and the indications from the polls are that it is — one should have as civilised a solution as possible to these differences.
What purpose does it serve if two people agree on that course of action and the court says it has, by some mechanism — and I do not know what mechanism is envisaged — ascertained that that is not the case? Is the court obliged to take the word of the people involved? If not, how does it establish under the mechanisms envisaged that "four years" are, in fact, four years?
The Minister is aware of my scepticism about some of the arguments advanced regarding the divorce culture or ethos and so forth. However, if it is the firm intention of the Government that four years should mean four years it is important for the public to be confident that the provision can be implemented effectively and that it will not be a facade. What mechanisms does the Minister envisage in that regard?
The question of living apart under the same roof was raised by the Minister, among others, in the course of the debate. I am puzzled about its implications and how one contemplates the modalities working out. How does one establish in those circumstances that people were living apart for four years? What is the position of children in such circumstances? Will they be dragged into the court as witnesses to what was happening? Who qualifies, in the court's view, to provide evidence to enable the court to arrive at a particular conclusion? Perhaps my fears are unfounded but I envisage a messy situation arising in that regard.
The Minister said on Committee Stage before the Select Committee on Legislation and Security, Official Report, 5 October 1995; Vol. L5, No. 5, cols. 334-5:
The court would have to be satisfied by constitutional directive that the parties had been living apart for four out of the previous five years. The fact that both of them may say so is not conclusive in that regard, and if a court had suspicion or doubt about that or was not satisfied, then the court could not and would not grant a dissolution of that marriage.
The Minister went on to refer to there being no reasonable prospect of reconciliation and so forth. How is this to be decided? Can one not envisage, without being hysterical or without exaggeration, an almighty mess? Can one not imagine relations between the couple, bad as they are, being exacerbated further by the inquiries that might be conducted? One could go a little further, although I do not want to go too far on this occasion.
May I speak again to respond as I do not want to take up too much time now?
An Leas-Chathaoirleach
Yes, you may.
Senator Quinn will have other points to make. What about the situation where one partner wants out of a marriage and the other is much more reluctant and they can only get a divorce by agreeing to say that there has been a four year separation? In those circumstances the other party will put a lot of pressure on the person who does not want a divorce to agree to that sort of arrangement. The scenarios that one can envisage, I hope not unreasonably, will worsen already bad situations. What confidence can there be that the four years provision cannot be circumvented by agreement between the partners in a significantly shorter period?
Are we taking both amendments together?
An Leas-Chathaoirleach
Yes.
The two amendments are similar. I considered my amendment very carefully and I urge the Minister to give it serious attention. The success of the referendum may depend entirely on this matter. Let me make one thing clear. I am in favour of the introduction of divorce, provided we can build in a sufficient number of reasonable safeguards. That I am in favour of this legislation will not inhibit me from speaking out against aspects of it which I think are misjudged; that is why I am proposing this amendment.
The present wording is bad because it gives the impression that it means something quite different. At first reading an ordinary person would assume that divorce is being restricted to people who have been living apart physically for the previous four years. The ordinary person would assume that "living apart" means not living in the same house. Many people will accept that as a reasonable test of irretrievable marriage breakdown. That the couple is living apart is evidence of breakdown and that they have been doing so for four years is evidence of irretrievability.
Many people present favour the introduction of divorce — and I include myself among them — because they believe that divorce would be restricted to cases of irretrievable marriage breakdown. They do not want "quickie" divorces; they do not want to undermine the institution of marriage by making a commitment that can be easily shrugged off. However, a very large number of those voters will get a shock over the next five weeks. As this campaign heats up, they will be told in no uncertain terms by those who oppose divorce of any kind that this wording does not mean what it says.
Like Senator Lee, I have read the Dáil and Select Committee debates on this Bill. I have watched carefully what the Minister and others have said. Opponents of divorce will be able to quote chapter and verse from the Minister to the effect that living apart does not have to mean living apart, that some kind of mental living apart will be enough. I know those are not the actual words he used but that is the inference.
On Second Stage I drew attention to two kinds of cases that could arise from this loophole. A person who did not want to be divorced could wake up one morning to discover that his or her spouse wanted a divorce and was going to claim that they had been living apart in the mental sense for the previous four years. That kind of claim would be impossible to prove or disprove; Senator Lee touched on this. There is the possibility that a couple with differences could collude on a fabricated story. They could say they have been mentally living apart for four years, although they have not. Again, this would be impossible to disprove.
Much has been made of the claim that this looser concept of living apart is already well established in legal practice and that we can rely on the courts to do the right thing. I do not believe that stands up. If we ask the courts to decide one way or the other on something which was in that last analysis unprovable, we are asking them to make arbitrary decisions, not judicial ones.
Another suggestion has been that the test would be based on the analogy of flatmates who share the same roof but lead totally separate lives — separate meals, rooms, beds, etc,. Most flatmates do not lead such separate lives. How will we prove this set up? Can we rely on the neighbours' evidence? Many people will say this is precisely the type of thing a person could be expected to keep away from the gaze of neighbours. Do we rely instead on evidence from the children, if there are any? That would mean we would base our divorce system on the need for children to give evidence in court about their parents' relationship. I touched on this last week.
I am going into this type of detail to give a preview of what will be said again and again over the next five weeks. There is a loophole in the present wording of the Bill which is large enough to drive a double-decker bus through it. What will be the end result? If the wording is unchanged and the loophole remains, there will be two outcomes. First, some people will change their mind on how they will vote. This would be perfectly reasonable for those who would vote "yes" because they believe meaningful restrictions will be built into the divorce system. Until now they thought these restrictions were there. Suddenly they will find themselves convinced by the opponents of divorce that the restrictions are not meaningful.
Second, when some people come to realise this they will be annoyed. They will look again at the wording and will say that somebody is trying to con them. That will enhance the credibility of those who will point out the con — in other words, the opponents of divorce. That will undermine the credence of those who are shown up as the authors of this deception.
How many people will change their voting intentions when the anti-divorce propaganda machine rolls into motion with all this ammunition? Recent opinion polls show a majority of the electorate in favour on writing the restrictions on divorce into the constitutional amendment. I agree with the Minister for writing those details into the amendment. That must surely suggest that there is a large constituency of people for whom the issue is a central one. I urge the Minister to consider this amendment carefully. If he accepts it, the restrictions immediately become meaningful again, as people thought they were all along. If he does not accept it, then at the very least I suggest that he starts to put together a good case for the wording as it stands, which will reassure those who are pro-divorce provided the divorce system has restrictions. These are the people who must be convinced.
At the end of the next five weeks, from what we know from history, following a bitter and hard fought campaign, no voters will give anybody the benefit of the doubt. By inserting one word we can reassure those people and achieve an outcome in line with present opinion polls. Without that word, I see the potential for possible disaster for this referendum. This wording shows that the definition of living apart is like a single loose thread in a large woolly garment. If we find that loose thread and pull it for long enough, slowly the whole garment will unravel until there is nothing left. Five weeks is long enough for the opponents of divorce to pull at that thread again and again.
I urge the Minister to realise that this could be the critical issue on which the outcome of the referendum depends. We must remember that if the outcome is a "no" vote then we can be sure that divorce will be off the agenda for a very long time. I commend my amendment to the House and, if necessary, I support Senator Lee's amendment instead of mine.
As I on said on Second Stage, this Bill will permit or allow a restrictive form of divorce. The Government and my party recognise that this Bill has the best chance of success before the people because, as has rightly been pointed out, it is not in keeping with our culture or tradition that we would have a Las Vegas style of "quickie" divorce. Having said that, the opponents of divorce — I am open to correction — have never made the case that they are concerned about this Bill because two adults may go to court and con a judge by saying they have been living apart for four years. I do not believe anti-divorce campaigners or any opponents of divorce have mentioned that they are concerned that two adults would perpetrate a con on society.
If two adults have reached a stage where they are prepared to go to court, perpetrate such a con on a judge and succeed in so doing, does that not say a lot about their marriage? Does that not suggest their marriage is irretrievably broken down? Would two people who are in love with each other, who have a marriage which is redeemable and has merit, go to court, perjure themselves and concoct a separation arrangement? If they are involved in any type of loving relationship, no matter what it amounts to — for example, one spouse cooking or cleaning for the other — and even if there is no physical relationship, would they concoct a four year separation con to convince a judge that their marriage has broken down? I cannot see how that would happen but, if it did, it would seem that a marriage has irretrievably broken down.
I refer to the two amendments. The Minister will probably say that under judicial separation law a judge must decide if a couple have lived apart for one year. A person can secure a judicial separation on the basis that there has not been a normal marriage for one year. Since 1989 judges have been dealing with this type of proposition. Given the number of judicial separations which have and have not been granted, judges have been interpreting whether a couple have been living apart.
There is a crossover between Senator Lee's proposal that a couple would demonstrably live apart and what Senator Quinn was worried about. If we are to prove that a couple have demonstrably lived apart, does that not suggest that we would need to bring in the children to say that Mammy or Daddy sleeps in the double bed or that Daddy sleeps in the boxroom? If we do not leave it to the discretion of a judge, how do we demonstrably do that other than by bringing witnesses? Judges are fallible and may make the wrong decision. However, if we include in the legislation that it must be demonstrated that a couple has lived apart, we are playing into the hands of the fears Senator Quinn expressed that children of the marital relationship or others will be called in as witnesses to describe the living arrangements — for example, whether the father orders a pizza while the mother cooks the dinner, or vice versa.
Senator Quinn's amendment poses a greater problem for me. While I understand the question of physically living apart, and it is clear cut and absolute, it says one thing and one thing only, which is the kind of criticism which has been levelled against the Church and may end up being levelled against the State. It says that if you must prove you have been physically living apart, then what this Government and anybody who proposes, suggests or recommends this referendum to the public will have done is to say it is divorce only for the wealthy. The only people who can live apart physically are those who can afford a second home.
This may have been raised in the Dáil but I have not read the Official Report on this issue in any great detail. As a member of a local authority I am aware of the fact that if you have a house, be it a local authority or a private house, and if you are deemed to have made yourself homeless, you can whistle in the wind if you think you will be granted accommodation by a local authority. If you are working, you have no chance of securing any kind of housing rent subsidy from the Eastern Health Board and the only way a couple can live physically apart is if there is a sufficient income.
I would have preferred if Senator Lee had put down an amendment to scrap the whole Bill after his excellent contribution on Second Stage because tinkering with this Bill will not improve it; it will probably make a mess of it altogether. I could not support either amendment for the reasons I have outlined. I think the word "demonstrably" brings in a sort of courtroom drama and the word "physically" would mean that the Bill would provide divorce only to the wealthy. That is certainly not the basis on which my party has offered its support for a yes vote.
I accept the sincerity with which these amendments have been put forward by Senator Lee and Senator Quinn but Senator McGennis has echoed what I wanted to say.
To be honest, the definition of living apart is always going to be a question of proof. The wording already in the Schedule is a question of proof which the courts are well adjusted to in terms of the degree of proof which is necessary to make a decision. As has been said, it is required to determine the definition of living apart under the Judicial Separation and Family Law Reform Act, 1989, so family judges with expertise in this area are familiar with what is required in deciding this living apart issue in any case. Our case law in family law adequately reflects that fact.
Looking at Senator Lee's amendment, "demonstrably" means it is again more a question of proof and, while it is well intentioned, it does not go any further than that which is there already because it is still a question of proof. That is really all it amounts to.
I take issue with Senator Quinn's amendment because physically living apart is not possible for so many people. I do not like to harp but many people who come to me are living together under the one roof but are living apart in real terms. For example, I know of a woman whose husband has not spoken to her for the last ten years. A housekeeper comes in to cook for him and the children and the children do not talk to her. She is under the same roof for only one reason; she has nowhere else to go. That is the hard reality and it is that hard reality with which we must deal.
I appreciate that the Minister has given the wording of this Schedule absolute and critical examination. I have spoken to him many times about how that should be dealt with. You have to allow for circumstances where people cannot afford to move away, buy themselves a house up the road and, thus, prove to the court without any difficulty that they are living apart. This is not always possible for the people who need this legislation most.
The possibility of collusion was referred to by Senator McGennis. If a couple are colluding and willing to go into court and state before the judge that they were, in fact, living apart for four years, that marriage is a farce anyway. What is there to save by making them wait another one or two years, or whatever it might be, at that stage? The expertise of family judges will be brought to bear in that particular case. Where a couple have obviously split up many years before and are probably living apart, I find it hard to see that they would come together and collude for this particular purpose. It is unlikely and I do not think it would convince many family law judges.
At least the requirement to live apart for four years within a period of the five years allows for reconciliation. That effort has been made in the wording of this Schedule. After all, by the time people come to the stage where they are living apart in a physical, mental or other sense, their marriage has ended; it is not what it should be and it is only a matter of time. Time is certainly a big requirement under the Bill because couples must wait for that four year period before beginning what is the final stage in the breakdown and burial of that marriage.
Even though I understand the concerns of the Senators who put forward the amendments, I cannot see that they will do any good or that they are required or are helpful to those who need this legislation.
I support the concept of divorce being available and the removal of the ban from the Constitution. I will campaign for the passage of the referendum but I disagree fundamentally with the way in which the Government proposes to do this. The detail of the legislation should not be included in the constitutional amendment and the amendments which have been put down this evening demonstrate the difficulty which many people will have.
Senator Lee asked for clarification of "living apart". The Minister cannot give that clarification because clarification of "living apart" will only come about when the Supreme Court makes a pronouncement on this definition. It is it who will decide what living apart means and, therefore, whether people must physically live apart or if living apart within the same house will be accepted.
Having said that, I too have the problems which Senator McGennis and Senator Gallagher have with the Bill. I would not support couples having to physically live apart in different houses because many women would not be in a position to set up a second home for four years. This would not be possible for tenants of local authority houses in particular. Therefore, only the rich will have the opportunity. If the Supreme Court interprets this as physically living apart, the four years can start for them as soon as they wish. They can immediately move out but it will be extremely difficult for poorer people, say local authority tenants, to do this.
I accept the sincerity of the Minister's belief that living apart will be interpreted by judges to include people living separately under the same roof, as has happened in other jurisdictions. However, the Minister cannot categorically give his assurance that this is how the Supreme Court will interpret it.
In other countries, they do not have constitutions which guarantee "... to protect the Family in its constitution and authority, as the necessary basis of social order and as indispensable to the welfare of the Nation and the State". as Article 41.1.1 of the Irish Constitution does. They do not require the State to guard the family against attack. The family is put on a pedestal in our Constitution; it is put in a special category. The constitutional provisions place an obligation on the courts to give a high degree of protection to the family based on marriage. That is why the Supreme Court will interpret this in a very narrow way. They will probably insist on people having lived physically separated lives so they must physically live apart.
I would be concerned about this because I do not think it is the only way in which people should be able to get divorce under this new legislation. This is the problem with putting the details of the legislation into the Constitution. If it was just a law we were passing, we could amend it if it was discovered it did not do what we wanted. We will not have that opportunity after the referendum; the only way this can be changed is by another referendum. We are failing the minority of people in the State who have waited for so long for a second chance by passing this restrictive Bill, which leaves interpretations of family law, which we should lay down, to the Judiciary. We do not have an opportunity to change the Bill to make it do what we want and what we know the people want. I am not in favour of an easy option for people who want to get divorced and I think no one in either House supports "quickie" divorce.
I do.
Senator Norris should wait until his partner tries to divorce him.
I do not. We should recognise people do not want "quickie" divorce because they want to protect children. Perhaps if no children are involved the position would be different, but if there are, none of us favours "quickie" divorce. I believe the Minister's intentions are good and he does not want physical separation to be necessary, but that will not be the result of this provision.
I agree with some of the remarks of my esteemed colleague, Senator Honan. On Second Stage I said the extraordinary proliferation of additions to the Constitution is a mistake and wondered what would go in next — the price of eggs or the times of the high tides at Sandymount, which in an abstract sense might be equally useful. I accept, however, that without this provision the referendum is unlikely to be passed and it is a measure of the immaturity of the Irish people that we have to take this approach.
I do not favour the amendments for a number of reasons. First, I believe any additional words to the proposed constitutional amendment will lead to a further possibility of litigation. One problem of adding such detail is that it opens up an area of judicial interpretation and further material for dispute in this area.
On a more practical basis, why should people have to live apart physically or demonstrate it? If they are so alienated that they wish to separate, who are we to start demanding that they be physically apart and demonstrate their apartness? One of the morning radio chat programmes featured a woman who had a consummated marriage and a number of children but her husband had not spoken to her for 30 years. They shared a house and a bed but did not exchange words and could not stand each other. They were not physically apart but they certainly were in the emotional and mental sense. I see no reason why those people should be forced to live apart physically.
I attempted to articulate the final reason on Second Stage but I do not think I did so terribly well.
Of course, the Senator did.
How kind — university solidarity. The point was also raised by Deputy Keogh and it concerns people on lower income levels, especially those on social welfare. Her practical concern was that local authorities or the Department of Social Welfare would not rehouse someone until he or she became homeless, so by including the provision that people would be required to live apart physically, we would place them in a catch-22 situation. They would have to become homeless in order to be able to live apart and could not get a divorce until they had become homeless, so it was financially and practically not possible for them.
It is even worse than that. If they make themselves homeless voluntarily they will not be rehoused.
I thank Senator McGennis for that additional point. For those reasons, although I understand my colleagues' motivation, I cannot support them on this occasion.
I propose to deal first with Senator Quinn's amendment. I understand the concerns which prompted the tabling of this amendment but regrettably I cannot accept it, for a number of reasons. The phrase "living apart" has been the subject of considerable research, both within the Office of the Attorney General and my Department. It is clear from decided case law that the phrase, especially when applied in the context of matrimonial matters, normally involves something more than mere physical separation.
Spouses may be living apart physically while at the same time both recognise the marriage as continuing. Many couples are forced to live apart because the business interests of one spouse so dictates, or for other similar reasons. I am sure they would be surprised to discover that under Senator Quinn's amendment such separation, provided it was of the requisite length, would put them in a position where they would be able to apply for a divorce. In other jurisdictions it has been held that the phrase would not be interpreted in the literal way I have outlined and that the mental attitude of the spouses must also be considered. At the very least this attitude implies a recognition by one spouse that the marriage is at an end.
I emphasise that the term "living apart" has both a physical and a mental element. In general, mere physical separateness is not sufficient to establish that a couple are living apart. Similarly a mental withdrawal by one spouse, unaccompanied by any attempt at physical separation, would be equally insufficient. Mental withdrawal alone may be relevant in considering concepts such as the absence of a normal marital relationship, a criterion which is relevant for judicial separation; but that is not the concept we are discussing here and we should bear that in mind.
If I were to accept the Senator's amendment I would be accepting a restrictive definition of the term "living apart" and would be precluding the courts from what I believe to be a proper consideration of the individual circumstances of every couple who may come before them to seek a divorce. In choosing such a narrow interpretation we would also be departing from established jurisprudence in other countries. It may sometimes be desirable to make such a departure but I do not see any good reason for it in this instance.
The amendment might also make it more difficult for a couple to show that while living under the same roof they had effectively established two separate households. There are couples who may be able to benefit from the fact that the proposal the Government is putting before the people is capable of bearing this meaning and I would be reluctant to prevent them so doing.
There is a clear link between Senator Quinn's amendment and that of Senator Lee and some points I made in relation to the first are also applicable to the second. Specifically in relation to Senator Lee's amendment, by using the word "demonstrably" the Senator is attempting to give emphasis to the fact that a couple seeking a divorce will have to prove to the satisfaction of the court that they have indeed been living apart. If that is the intention behind the amendment, the change suggested is not required. As the constitutional amendment stands, a court may only grant a dissolution of marriage if it is satisfied that the spouses have lived apart from one another for the requisite period of time. Inevitably, therefore, a couple must furnish evidence to demonstrate that they meet that particular criterion. The evidence must be of a sufficient weight to satisfy the court that the constitutional requirement has been met.
I appreciate the Senator may be concerned about the possibility of collusion between spouses who wish to obtain a divorce but, in any legal proceedings, collusion or false evidence is always a possibility. However, the vast majority of our citizens take the oath seriously and would be reluctant to expose themselves to the consequences which might result if their perjury — that is what it would be — were to be discovered. The courts must always be alert to the possibility that evidence may be fabricated and I have confidence in their vigilance in this matter. For these reasons, I regret I am unable to accept the amendments.
I listened to the discussion with intense interest and I am as uneasy as I was at the beginning. Senator Norris may appear less central than others to the concerns expressed but I greatly admire the courage and integrity with which he expresses his views, even when I strongly disagree with them. I disagree that any legislation or referendum proposal which involves human relationships stands on the same level of significance as the price of eggs at high tide at Sandymount.
Senator Norris represents a much wider constituency than the one which is prepared to say exactly what he said in the House. If one looks at the media, there would be no difficulty extracting quotations and arguments from the last several months which tended much more in that direction than the one expressed in the House, which is strongly opposed to the inclusion of the four year waiting period in the Constitution, not on constitutional grounds but because they do not want waiting periods at all. There is no difficulty citing chapter and verse on that aspect.
I will not attribute that view to Ms Nuala Ó Faolain for whom I have great admiration despite the tone of her column yesterday in which she stated:
Will A and B, who are both in happy second relationships, get into trouble when they go for a divorce because they have always nipped upstairs for a quickie when he brings around the box of groceries on a Saturday afternoon and her two younger children might as likely be his as her boyfriend's?
This is a charming scenario of relations in parts of Dublin with which I am not familiar. I suspect that reflects a viewpoint which is more widespread outside than here. We hear very little in the House about that way of looking at things; we hear balanced expositions of how responsible we must be even when we disagree with the four year delay.
The point which struck me about virtually all the arguments advanced was that they made a most effective case against a four year wait. I hope I do not misquote Senator Gallagher — she will correct me if I do — but she said if a couple came together to collude within the timeframe their marriage is a farce anyway and what is there to gain by making them wait? If that type of thing happens, the marriage is a farce but the argument would be for shortening or abolishing the time period rather than having a time period.
I keep returning to the problems involved in the court ascertaining the position in messy circumstances which will exacerbate the situation rather than ameliorate it and provide for the possibility of an even half civilised exit from such a relationship. The Minister quoted case law with which I am unfamiliar and the position in other jurisdictions. At the Select Committee he stated:
This concept is used in other jurisdictions and the interpretation which I am about to give has received judicial acceptance in those other jurisdictions. I am confident and satisfied that judges here are likely to follow a line of reasoning which has been widely endorsed.
Senator Honan made the valid point that these jurisdictions do not have our Constitution and this clause must be interpreted in the context of the entire Constitution. Judges who do not want to go in the direction of other jurisdictions — they may be going in that direction to some extent already in terms of separations but that is a different matter — will find themselves pulled in different directions by constitutional imperatives. It is not possible to deduce what will happen in that regard.
I do not wish to quote the Minister against himself but he also stated:
I am confident that the formula which the Government has chosen is capable of being interpreted in the way I have outlined.
Everybody would not agree with that; by definition it is also capable of not being interpreted in that way. This seems an extraordinarily fragile basis on which to enter a referendum to persuade the Irish people that this clause satisfies the requirement, which presumably the Government has identified as a popular wish, that there should not be the possibility of relatively rapid divorce. Last week I said the entire matter was a leap in the dark. This clause is even more a leap in the dark than the total legislation.
When Senator Honan said nobody in the House wants easy options, she was immediately corrected by Senator Norris. However, it seems the nation does not want easy options or divorce made so easy that it is possible to avail of it on a whim — for example, a couple having a row who decide to get a divorce. At first glance, somebody reading the proposed legislation would think that is unlikely and people are protected. However, this is before one considers the various points.
The Minister expressly stated the courts will consider the situation where people have not physically been living apart but claim to have been living apart and take this aspect into account when making its decision. However, as the Minister correctly judged, the electorate is insisting that the details are included in the Constitution, against the wishes of most people who think it is a framework and should not contain such matters because it does not trust us. The electorate does not trust the Legislature not to change its views and this is why the legislation is so detailed.
Given that position, my amendment seeks to help the Minister ensure the referendum is passed. I am convinced that during the next five weeks, the term "living apart" will be crucial to many people when they are deciding how to cast their votes. The Minister is making an error by providing such a loophole for people who do not want divorce of any type. He is giving the anti-divorce lobby the opportunity to draw attention to this loophole. On that basis, I fear the Minister may look back in five weeks' time and see this as being the crucial element that helped many electors decide how they should vote.
In putting forward this amendment, and having listened to the words of Senator McGennis, Senator Gallagher and the Minister with great sincerity, I am trying to help the Minister so that the electorate will understand that we are trying to achieve something which will enable us to have this legislation passed by the electorate, who may not pass it because of the vagueness of the wording to which the Minister has drawn our attention. This is why I urge the Minister to seriously consider this proposal.
The Minister has said that "living apart" is capable of being interpreted by the judges to include people living separate lives under the same roof. However, the Supreme Court interpreted the Matrimonial Home Bill in a much narrower way then we expected. It interpreted the constitutionality of the Bill. The decision in that case was totally out of line with what we had anticipated. Since it will be interpreting legislation that will be based in the Constitution, it will have no choice, taking into account the other provisions in the Constitution, but to interpret this in a similar way and, as such, will interpret it as requiring the total physical separation of the spouses. I do not believe that is necessary.
I do not agree with Senator Quinn. Spouses do not have to be physically separated to acknowledge a marriage is over. It is possible for people whose marriages have been dead for many years to live in the same house. People will believe that those in that situation should be given an opportunity to divorce. Being physically present without being mentally or emotionally there would have more of a bearing on my beliefs than a pure physical presence. If a person is not emotionally and mentally in that marriage, one might as well be on the far side of the world or on the moon. One does not have to be physically living outside the house. It is especially difficult for people in local authority housing and those who do not have the money to move out. This provision will also force people to move out at the first sign of trouble. They may decide to start the four year separation period if they think their marriage is over. It will not even give them an opportunity to remain there, giving a chance of a reconciliation.
I am totally opposed to Senator Quinn's amendment. I do not believe the vast majority of people would not support the measure or would only do so if the couple had to physically live apart.
I understand where Senator Quinn and Senator Lee are coming from in making this point. However, the vast majority of those who seek barring orders and judicial separations are not well off. If these conditions were to be brought in, it would severely restrict the availability they would have in establishing the conditions which would allow them to get a divorce. The vast majority of women are not able, even in seriously violent cases, to leave their homes. It is only when it becomes so intolerable that they fear for their lives or those of their children that they eventually seek refuge in a hostel. This provision would make the situation terribly difficult for them.
I support the point made by Senator Honan. If the spouses are in the same house for a certain length of time after things have started to go badly, it may be more likely they will establish communication if they are still physically living together rather than if they separated immediately so they can start issuing proceedings against each other to meet the four year period. They may decide that matters were not as bad as they thought after the second, third or fourth year. There is at least the possibility of greater communication if they live in the same place than if they had felt forced to live in different physical locations from the beginning of their decision to separate.
I am still puzzled as to how this measure will work in practice. The Minister said that the couple will have to furnish evidence that they meet the criteria of the court that they have been living apart for four years.
The applicant will have to furnish the evidence.
What constitutes evidence? The fact that both of them may say so is not conclusive. What will the court look for, apart from the assurance of the partners, to prove they have been living apart for four years, in whatever sense it means? I can see the force of Senator Quinn's argument; it is a powerful one. The Minister has rejected it, but he would be wise to pay much closer attention to it.
I put in "demonstrably" partly because of the type of argument advanced about the difficulty of moving out and so on. A couple will have to furnish evidence that they meet the criteria. What constitutes evidence in that regard? Will children be dragged into the situation? Are they to be witnesses in a matter like this? Will neighbours be dragged in? What constitutes evidence in those circumstances?
If one cannot persuade a wider public, irrespective of what proportion whose vote hinges on this issue, that the four years means that and it is considered sufficiently important that it should be included in the first place, if the suspicion becomes widespread that this will not mean what it says and that there are ways of getting around it, many people will, as Senator Quinn said, look carefully at the implications of this phraseology. If a court had suspicion or doubt about that or was not satisfied, where will it verify these suspicions if the two partners agree they have been separated for four years? Where does suspicion enter the equation? How will this operate?
I accept the sincerity of Senator Quinn's amendment. He is trying to help the Minister by pointing out——
So am I.
And so is Senator Lee.
He is pointing out that this loophole may be exploited in the next five weeks and be turned against the Minister.
However, if we were to insert this wording today and it emerged that it had the effect I know it will, I will be the first to tell people who are not in receipt of an income in their own right to vote no. It means those people who cannot afford to move out of their homes will be penalised. I will accept Senator Quinn's wording if he can convince me there is a way in which those who are not in receipt of an income can physically move out. However, I will be the first person to go to Blanchardstown, Tallaght, Clondalkin and Clonmel at the end of the month and tell people they have been sold a pup because we are only facilitating those who can already get a foreign divorce.
Senator Henry made a valid point. As matters stand, an abused spouse can stay in a hostel for only up to 12 weeks — it was only six weeks at one period. What do they do after that time? Do they go back to the family home? How will the Minister cater for that situation? I understand what is being said, but the anti-divorce group are not hinging their arguments on the physical separation element of the Bill. They are using many other reasons to convince people to vote no. If there was some way that this amendment could be incorporated to allay these fears without doing the damage I know it will do to the people I represent, I would have no problem with it. I would like either of the Senators proposing the amendment to tell me how I can go to Blanchardstown tomorrow and say I have supported an amendment which means that those who can will get a divorce and those who have never been able to secure separation will once again be discriminated against. In essence the amendment is discriminatory.
I thought I had made Senator Henry's point that not being required to live physically apart gives a possibility of reconciliation within the five year period. That is what I intended to convey when I first spoke. If, as Senator Honan suggested, the Supreme Court had to determine what constitutes living apart, then in the context of a Constitution that is very much pro-family this argument would favour the definition of living apart as not requiring physical separation because that would be repugnant to the Constitution, which hopes to keep the family together. The definition of living apart is well established in Irish family law. People argue that we do not know what the Supreme Court would decide. It would not require people to live physically apart because if that was the case, we would have a judicial system which would actively force people out of the family home and to separate in a physical sense.
The requirement in the amendment that people physically live apart would automatically bar thousands of people from divorce. There are thousands of people who just simply cannot live in or afford another home. I disagree with Senator Quinn that this is a critical issue for people when deciding whether to vote "yes" or "no". I do not think they will examine the legislation like that. Our failing in deciding on issues such as divorce is that we go overboard on emotional issues. People will look at the family, how this affects children and society in general, the slippery slope to decline and all of that, rather than examining word for word what has been put before them. Those broader issues, with which we have dealt, relate principally to marital breakdown and not to the existence of divorce. We may be overly exciting ourselves by stating that this is the main issue in the divorce referendum.
I do not want to go over the ground that was covered. I am not a legal person. We are told that the term "living apart" is well established in Irish law. The Minister has a legal qualification and I ask him to give us some examples where people living under one roof in separate households were deemed to be living apart. I also ask if he would relate to this how the courts will handle the requirement that there be no reasonable prospect of reconciliation between the spouses. How would this be explored and how would the court satisfy itself in those circumstances?
It appears to be a safeguard against the abuse of this provision. The courts would have to ascertain that there is no reasonable prospect of reconciliation between the spouses and that should help safeguard against the concerns expressed by Senator Quinn and Senator Lee. I listened to their concerns very carefully because I will have to answer such concerns in various fora over the next five weeks. I am interested in the Minister's reply because we will have to deal with this question at meetings in the constituencies.
I am far more worried about the people involved in the divorce and their children than I am about the courts. If we require people to live physically apart, not only would the possibility of reconciliation be reduced but it may also make the situation worse for the children. During the Second Stage debate Senator McGennis said that years ago people used to say that couples only stayed together for the children. Was that so bad? We have all admitted that we are seriously worried about the effect of marital discord and marital separation on children. If couples were to live in separate households in the same house and could be persuaded to maintain some sort of accord, especially as far as their young children were concerned, they would be maintaining as normal a situation as possible. Should we blame people for that? I do not think so.
In these situations it is much more important to remember the human beings involved, be they adults or, more importantly, children, and not get too concerned about how the Judiciary will interpret matters. We will have to deal with that as we proceed but my main concern would certainly be for the people involved.
I fully accept that Senator Quinn and Senator Lee are sincere in the proposal of this amendment. The amendments are valuable as a vehicle to enable us to discuss the issues involved. I do not accept that anything in the wording of this constitutional amendment is either a leap in the dark or a loophole. It is a carefully structured and carefully thought out provision to meet the needs of the situation.
Much has been made in the debate about the question of the evidence. People asked if the children or others would be called to give evidence. It is a matter for the person making the divorce application to decide what evidence he or she will call. People will come to court seeking a divorce and call their evidence as happens in every other court case. People qualified to give evidence will be recognised by the court as competent witnesses in these cases as they would in any other case. It is a matter for the applicant and his or her legal adviser to decide what witnesses will be called.
Senator Lee asked what would the court look for if the evidence of the two people concerned that they had been living apart for four years — this deals with collusion — was not sufficient. Every case is different. I can only say what is required under the wording of the amendment. The injunction is laid down there for the court. A couple seeking a divorce must satisfy the court that they have been living apart for four years out of the previous five. That is a decision for the court. I cannot say what would be required and whether someone would need ten witnesses or five witnesses.
In most cases if the people giving evidence give the impression to the judge that they are credible witnesses, the probability is that the court will accept that. However, if for whatever reason the judge hearing the case is not satisfied that they have been living apart for four years, he or she may not grant the divorce because the Constitution says that the court must be satisfied.
A judge might get the impression that witnesses are perjuring themselves, as happens occasionally in court. It may not even go that far; a judge may not be satisfied that evidence has been adduced to establish the point and will not therefore grant a divorce. The judge may adjourn the case to allow for the calling of further evidence which would tip the balance and satisfy the court. That is the position in relation to evidence. It is not special to a divorce or judicial separation case. It applies to any case where the applicant calls the evidence. In this particular instance the court, as enjoined by the Constitution, must be satisfied that these facts can be established before the divorce can be granted.
The same remarks apply in answer to Senator Neville's question as to whether there is a reasonable prospect of reconciliation. That is a matter on which the judge must be satisfied before he or she may grant a decree of divorce. What would satisfy a judge? That varies from case to case. The judge hears all the evidence and may perhaps say that the position seems very immature and that he or she is not satisfied that there is no hope of reconciliation in that case. Having heard the evidence, what was said and how it was said in response to examination and cross-examination, the judge may say "There is work to be done here. I am putting this case back for three months. I suggest that counsellors be called in". Progress may or may not be made. When the case returns to court the judge may decide that he or she is satisfied that there is no reasonable prospect for reconciliation. Courts decide these kinds of issues every day of the week based on the evidence presented.
With regard to the question of the meaning of the expression "living apart", I have stated that it imports two elements, the physical and the mental. Either one of these on its own would not be sufficient. This highlights the weakness of Senator Quinn's amendment. For example, a case could exist where the husband parts from his wife on very good terms and travels to work on an oil rig in Saudi Arabia for five years. During that time he exchanges telephone calls and letters with his wife regarding the wellbeing of the children and sends her money. The usual, normal connections between husband and wife continue to apply. They are physically apart, to use Senator Quinn's expression, but the mental element is lacking although the support and communication are present. Therefore, that physical element alone is not sufficient. That person would not qualify at the end of that five year period to immediately apply for a divorce. The physical element was present but the withdrawal of the mental element was not. For that reason, it is clear that Senator Quinn's amendment is not acceptable. I am sure he will see my point when he considers the case outlined.
In relation to instances of when people would be living apart under the same roof, there could, and will, be very many variants of circumstances involving a husband and wife. To take an extreme case, if a husband and wife are living in separate flats — albeit it under the one roof — they might as well be living in separate houses, in the next street or in the next town. They are living in separate accommodation, separated from each other. The fact that one roof happens to cover the two households does not stop these people from living apart.
Senator Neville asked for examples but there could be thousands of nuances and variations. Senator McGennis or one of the other Senators gave the example of the situation where a marriage was in great difficulty with little or no communication between the spouses, but they shared the same bed. There may be a mental withdrawal in that case but not a physical one. If they are sharing the same bed that represents a cohabitation. The opposite of living apart is cohabiting. If they are cohabiting, the qualification under the terms of this amendment would not arise. There are 4,400 applications for barring orders each year and people are barred from the family home in large numbers. Actual separations do take place by agreement, under barring orders and under judicial separation orders.
I believe there will be no grey area involved in the overwhelming majority of cases. People will be living apart from each other as a result of a barring order, a separation by agreement or a judicial separation. The number of cases where the position of living apart under the same roof would apply would be relatively small. The position for the overwhelming majority of that small number is clear. They will be in separate households or they will not. If they are in separate households and the court is satisfied of that fact, they will qualify. If the court is not satisfied, they will not qualify. The object and essence of the exercise is — I said this on Second Stage — that we are not talking about permitting the dissolution of a marriage which is in difficulty. We are only concerned with allowing the dissolution of a marriage which ended more than four years ago.
The words "living apart" already have an interpretation in Irish law under the Separation Act and in many foreign jurisdictions. The analysis along the bases I have outlined is common to all of them. There will be individual cases where the court will have to decide, with regard to the facts of the particular case before it, that that criterion has been satisfied. The courts will decide that. I assure Senator Honan that the Supreme Court will not decide these cases; the overwhelming majority of them will be held in the Circuit Court. Every case will have to go before the Circuit Court. There will be no such thing as divorce by agreement. Separation by agreement exists but there will not, and cannot, be divorce by agreement. Every case will have to go to court. In the relatively small number of cases where the term "living apart under the same roof" applies, it will depend on the facts of individual cases and will be determined by the court on the evidence before it.
I am puzzled by the scenarios suggested by all Senators in relation to what may happen in the future. The Minister argued very persuasively that a relatively small number of people are in the situation of living apart under the same roof. I am open to correction, but as I understand it Senator McGennis argued that there is a substantial number of people in Blanchardstown, Tallaght and Clonmel who do live in such situations. The Senator said she would go there and campaign against the referendum. Senator Gallagher stated that "This would bar thousands of people from divorce.". Does the Minister know the number of people involved? Do people who deal with this problem on a daily basis have different impressions? What kind of projections of the likely numbers involved are available? There seem to be differing assumptions with regard to the likely trajectories. Perhaps I could put that as an open question to the House?
Perhaps the Minister would like to deal with Senator Lee's point first. My question relates to a different issue.
I do not have any figures because Ireland has not had a divorce jurisdiction until now. It is fair to assume that when one is talking about a marriage which ended more than four years ago — not one that is in great difficulty — the probability is that those people will have been apart for a considerable period in most cases. This is in the case of a marriage which ended more than four years ago. Of those in the situation of living apart under the same roof, the courts will decide whether they are living apart within the meaning of that expression. We are not starting with a blank sheet on that issue; we already have the benefit of interpretations and law on it. It is not a new concept in law being introduced here or in other common law jurisdictions around the world for the first time. There is a wealth of law on it.
The thrust of that reasoning in all those countries, which is common to them all, will be followed for the simple reason that it is based on good, sound common sense as much as anything else. When we say "living apart" in the family law context we are talking about a physical element and a mental element — not one alone. It will be followed here for good commonsense reasons and not just because of a whim on my part. Those trends of law in those countries were evolved for good, obvious commonsense reasons.
If a man has been working on an oil rig for seven years and has been in constant communication with his wife through money remitted and 'phone calls and has all the supports and advices that are a key part of a matrimonial relationship, although he has been physically living apart from his wife one cannot say they are living apart in the family law sense or in common sense. That is why those legal thrusts have evolved in that way.
If they are under one roof — and that seems to be the bugbear — in most cases the court will hear the evidence and decide whether there are two separate households involved. There may be two separate flats under the one roof — that is not unusual. There is nothing magical or mystical about being under the one roof; that is not the point. The point is whether they are in separate households. If they are and the marriage has been over for that period, then they will come within the ambit of that provision. It will be clear enough in most cases. In some cases the courts will have to probe through the evidence, consider it and decide whether it is satisfied there were two separate households in the case. The onus will be on the person who alleges that he or she is entitled to the divorce to show the conditions have been met. They will have to satisfy the court that the couple have been living apart for that period.
The Minister said it is up to the applicant to decide what evidence to quote. If the applicant is living in a separate home the evidence is easy — there is a separate address. My concern is that if the applicant has to prove mentally living apart the judge, in the Minister's words, may say there is work to be done and tell the persons involved to go away and come back with evidence. My fear is that they will have to come back with the children or neighbours to prove it. The term "physically" is clear if included because there are separate addresses. If the term "physically" is not included then there a problem. The Minister points to a problem if the term "physically" is included for a person working in Saudia Arabia or working abroad on an oil rig. That might be solved by adding "physically and mentally" but that itself may lead to bigger problems than ever before.
Are we discussing the amendments and not the text of the Schedules?
Yes, just the amendments.
I am glad to note the Minister does not place the same degree of reliance on the term in the Schedule that is proposed to be amended "... where, but only where, it [the court] is satisfied ...". On Second Stage the Minister seemed to place great emphasis on that. I am reassured today to hear him talk of that as the standard that has to apply in every case upon which a court adjudicates.
There is no question but that in any case where a court is dealing on the balance of probabilities, as distinct from a criminal case which is dealt with on the basis of "beyond reasonable doubt", the test is always that of the court being satisfied. The court must be satisfied in respect of any evidence whether it is in a case involving a road accident, trespass or company law. The same applies here. There is no extra dimension implied in this legislation which imports a greater burden on a court or requires a greater level of satisfaction to the level of satisfaction that would apply in any case where a court had to come to a conclusion.
The word "satisfied" comes from the Latin satis factum which translates literally as “made sufficient” and that is all that is required. In many cases of all kinds I have heard a judge say he is or is not satisfied on the basis of the evidence. That is the standard term used. We have clarified that the expression “... where, but only where, it [the court] is satisfied ...” does not import any new guarantee or test beyond that which is required of a judge in every case.
The degree of satisfaction is a subjective matter. The judge can only decide from his point of view; he must reach a conclusion which will or will not satisfy him in the circumstances. I should say "him or her". When I started to practice in 1961 there were no female members of the Judiciary and one develops bad habits over a 30 year period. We have learned to cope, notably through the admonitions from Miss Justice Carroll and others. Even "Your Lordship" is not now an acceptable mode of address.
Arising from what Senator Henry said, it is well for us to know that the only text the judge will consider in making a decision on the evidence is that which will be in this law. What is written in the Bill is what the judge is enjoined to consider. The Minister may give his opinion as to what may or may not satisfy a judge or as to what the regular procedures and patterns of reasonable people may be. That may be a reasonable personal interpretation on the Minister's part. However, as the country folk may say "It does not count for a hat of crabs" when it comes to the judges' criteria.
In the course of 30 years experience in the Oireachtas I have come across this many times. I have heard Ministers from all parties insist on this, that and the other, reassuring all and sundry that this is all something could or should mean. Admittedly the Minister, Deputy Taylor, has not gone that far today. However, my view or the Minister's view as to what is or is not a reasonable interpretation of something is only that one person's view. A judge is only obliged to adhere to what is written in what we propose to pass as law and not to what we say here today.
Senator Henry said she is not really concerned about how the Judiciary may interpret matters, which is perhaps a reasonable and fair point particularly for a lady Senator to observe. She is much more concerned about the effect this will have on children, which is a fair and reasonable point in terms of the human response. However, how a judge may interpret matters should be our concern at this point. Our job is to ensure that judges will have a clear guideline on which to base their interpretation. We can argue the other issues afterwards. As people are aware, I have fairly strong — although I hope reasonable — views on how it will affect children.
I am concerned that this issue is not as clear, clean cut, sharp and finely defined as the Minister's approach the last day would have us believe. I do not wish to pick at words but it is very important that we be clear because there has been a great deal of woolly argument with the use of terms such as "sweep under the carpet" and "people must have a second chance". We hear those phrases all the time. This is a huge and very important issue and we must be sharp, clear and precise.
The Minister said that the injunction is laid down for the judge. He can hardly mean that, except in so far as the judge takes an oath of office to administer the law in accordance with the Constitution — that is the injunction which is laid down for him or her. We are not laying down any injunction for any judge today for the simple reason that we have no right or function to so do under the separation of powers which is very much enshrined in our Constitution. Let us be clear that we cannot lay down an injunction for a judge. He or she is obliged under their oath to administer the law which will be written down in the Act we pass. It is wrong to say that the injunction is laid down for the judge. The only injunction we are laying down is for the applicant or the respondent, the plaintiff or the defendant. We are laying down the conditions which the plaintiff or applicant wishes to prove.
For that reason, I have considerable sympathy with the points made by my two colleagues. Unfortunately, I did not hear their presentations but I heard the responses and their queries arising from the Minister's reply. However, I have a degree of understanding and shared concern with the points they are making. The Minister's reply reassured me about his intention — I do not question his bona fides and his presentation was reasonable and rational. However, I was not reassured about the impact of what we are doing here.
He said that we are talking about a dissolution of a marriage which is over. That is what we all mean. However, we are trying to tease out today the tests of the marriage being over. Living apart is an issue. Some might say that the words "separately" or "in separate homes" might be more appropriate because there could be two homes in the same house. The Minister gave an example of somebody living in Saudi Arabia working on an oil rig. They are not living apart in the sense we mean——
But they are living apart physically.
Yes, but that is not the intention of the Legislature.
Exactly.
It is unlikely that a court would come to that conclusion. The Minister said there has been a number of Irish cases, of which Senator Neville asked him to give some examples. I would also like to hear those examples as I am only aware of cases in other jurisdictions.
Although I have not practised very much in the family law courts, in 1975 I happened to act — I think we touched on this area the last day — in what was probably the first Supreme Court determination of an annulment. A young senior counsel, who is now a distinguished Supreme Court judge, Mr. Justice Séamus Egan, and myself got, as far as I know, the first decree of nullity in 30 years in our courts. I would like to see that followed much more in statute law, as has been said here. However, for a variety of obvious reasons, I have not practised much in family or other courts over the last 30 years.
The Minister said that those who have separated by agreement, either in terms of a deed of separation drawn up by their solicitors or a separation determination by a court, have been clearly living apart for a while and that would fulfil the terms. He said we are not talking about divorce by agreement. However, my big concern is that while we might not be talking or thinking about divorce by agreement, and might be totally opposed to such a notion, that can actually be achieved here.
In many cases of marriage breakdown the two people involved want to break that link and establish a new one. It is asking a bit much of the human condition to suggest that it is unlikely there will not be divorce by agreement, even where these conditions may not have been satisfied. The judge has no way of questioning the base, much less rejecting it, when one party says they have been living apart for good reason. What countervailing evidence is available to the judge? The judge can have an instinct that he is being told a yarn. However, he has taken an oath to administer the law on the evidence before him and not on the basis of a human instinct. The physical evidence, which my two colleagues addressed, is an important element because it is clearly demonstrable. It would import what may be called provable, visible, actual fact on which a judge could base his or her decision.
The Minister remarked that the trends of law have evolved for commonsense reasons. This is the case. One does not expect judges on the bench to suspend their commonsense, although a number have been known to do it from time to time.
Even Members of the House have been known to do that.
Yes. However, it is not done deliberately. We have often taken issue with judges on this. Nevertheless, they would claim, even those whom we would consider to be certifiable, that their decisions were made for commonsense reasons. While I would not wish to speak on the influence on judges and the kind of witnesses that influence them — there are stories with which I will regale my colleagues at a later stage, not here in the House, as to the kind of influence that would satisfy a judge on occasion, but that is more apocryphal than to be quoted here — commonsense is a matter of great difference in different places.
With regard to what has evolved in law, the Minister has spoken of decisions that have taken place in English courts, because that is where divorce laws have been in place for some time.
It is wider than that.
Yes, one could refer to American courts and so on.
Australian, Canadian.
Only today proposals have been suggested in the English courts regarding divorce. It used to be a matter of fault, of adultery and so on. We know the evolution of this and all the nonsense this gave rise to. Following on this, irretrievable breakdown became the only test. It is now proposed to be sensible on the issue. Incidentally, is this not the way one always speaks when introducing measures such as this — let us be sensible, let us be reasonable, tolerant and so on? What are they being sensible and reasonable about in England now? It is suggested that divorce should be open to one after 12 months and to do away with all other tests.
In this country the process and standard of law has been influenced by the determination and judgments that have been the basis of English law. This being so, and because we are dealing with an evolutionary situation, are we going to accept that this corpus of laws can also influence us in terms of what will follow? There is a caveat here.
I may disagree with terms and views from conviction. For example, I do not share the Minister's intention, but I do not question his bona fides. I will address intention when we consider the Bill, and hopefully adduce more evidence that I did not have the last day as to the quantum leap of a changed order in society that this proposal will bring about, a quantum leap that will leave me very greatly worried.
I support the amendments and the purpose behind them. I am not reassured by the consequence that will follow, though I am accepting the Minister's good intentions. However, that is not enough at this stage.
I assure Senator O'Kennedy that it is not that I am unconcerned about members of the Judiciary that I spoke as I did, rather it is that I sometimes find it very hard to know how their minds work. I am sure he has the advantage on me here because he is a lawyer and I am just a lay person.
I am paid to try to know, but I very seldom find out.
We can do the best we can with the amendment, but we cannot possibly know how it will be interpreted by the Judiciary. I was not in the Oireachtas when the Eighth Amendment to the Constitution was proposed. However, I strongly opposed it outside the House because I could not understand what it really meant. I am sure that those in the House at the time argued carefully about it and thought they knew what it meant in passing it. Yet when it came before the Judiciary it was interpreted in a way that was unexpected by many of those who had supported the inclusion of the amendment in the Constitution.
I cannot add greatly to what I have already said. Whatever words one uses, be it in the Constitution or be it in an Act, they are subject to interpretation by the courts and are interpreted as time goes on. The words "separately", "physically" and "demonstrably" would be interpreted. All these things are interpreted; that is what the courts do. They determine the evidence and make interpretations of expressions that exist.
The expression "living apart" is not new. I did not mean to convey that there are Irish cases, and I wish to correct this if I did so. I meant to convey that the expression is not new to Irish law. It has been a feature of the Judicial Separation and Family Law Reform Act, 1989. since that year. Thousands of cases are considered within the ambit of this Act. It is not, therefore, a new expression in Irish law. It is there in the Act. Admittedly, it will now be in the Constitution, but nevertheless it is the same expression. There are lines of judicial interpretation on it in a number of other common law jurisdictions. If one considers them or looks at them there is a line of reason that one can clearly follow and one can see the base of the decisions that have been made there.
Some test has to be applied. Very great care and thought were put into the particular wording that would be used. All possibilities were considered, examined and re-examined. I have no doubt that the end result we have come up with meets the objective of the Government in putting forward this proposal. Living apart was determined on as being far and away the one that best meets its objectives in introducing this amendment at this time. It will cover a marriage that is over. It will not cover a marriage that is in difficulty. The parties must have been living apart for four years.
There will be judicial interpretation. No matter what words one would use there would be judicial interpretation in the small areas that form the grey area of difficulty, where there is a dispute or where the court is not satisfied that the conditions that would be written into the Constitution, if the amendment is passed have been met.
To clarify for Senator O'Kennedy, when I referred to injunctions what I meant was that the conditions are laid out for the courts. They will follow conditions that are laid down, both in an Act and in the Constitution. The courts will look at the parameters set by the Oireachtas and will see that it has to be satisfied that these conditions have been met. While one can agree or disagree with the decisions that the courts make from time to time, they do their job with great care and attention.
The reality of the position is that in individual cases coming before it, the court will look at the evidence that has been adduced by the applicant, will decide if it has been satisfied that the parties have been living apart for four years, that there is no reasonable prospect of reconciliation and that the necessary provisions in the other condition have been met for the spouse and children. Then and only then may the court grant the dissolution, and then and only then would the court grant the dissolution.
Acting Chairman
It would appear that we have nearly exhausted the argument. While I have no intention of rushing anybody, I wish to move on.
For something that is going to have in impact on society for good or ill one, two, three, four or five hours of our precious time will not exhaust the argument. Time alone is not the issue, and I say that with due deference.
The Minister might clarify a point. In so far as there have been judicial determinations under the separation code — the old divorce a mensa et thoro or divorce from the bed and table — can the Minister reassure us in relation to cases in the courts of record, such as High Court decisions on appeal from the Circuit Court or cases stated, if the term “living apart” has been judicially interpreted as a matter of binding precedent for courts of equal or lower jurisdiction under the existing law? If there were, it at least would be a reassurance that the law as it is applied will be applied this way. Then we would have firmer ground on which to walk even if it happened only in relation to separation, although we are now talking about divorce. That is the test. Perhaps the Minister can refer us to such cases. He has referred to cases in other jurisdictions but we would be interested and reassured if there were cases in the courts of record such as the High Court or the Supreme Court where an interpretation is put on “living apart”. We are only doing our best as public representatives and laymen in that sense.
I thought the Senator had his homework done. The Senator told us that earlier.
In what sense?
The Senator told us earlier that he had his homework done and that he would return with further information.
That is the point.
I had incorrectly assumed that the Senator had investigated the matter.
I am not aware of any High Court of Supreme Court case in Ireland which has ruled on that issue. However, the expression has been in Irish law for many years and is widely used in the jurisdiction. There have been 12,000 applications for judicial separations and the words appear there. I am also not aware that it has presented any difficulty in interpretation in any case before the courts, if, indeed, it has arisen.
Decisions in other jurisdictions have interpreted the expression in an understandable, logical and reasoned way. I believe that will be followed here. Ultimately, the Irish courts in the small number of grey area cases that will arise will determine whether, for the purposes of this constitutional amendment, the parties have been living apart for four years or not. It will depend on the particular circumstances of each case and every case will be different. The exact interplay will be different in each case but, by and large, taking all factors into account and according to the advice I have been given, it is fair to say that if the court holds that the two parties were in separate households, albeit under the one roof, they will qualify for a dissolution under the amendment. They will, of course, have to comply with the other conditions as well. If the court is satisfied on that account, they will have discharged the requirement in respect of that condition. That is the position.
If the Minister is not aware of judicial determinations of this nature in the courts of record that would bind other courts, I can only assume that there are no such determinations. It would be careless research on the part of the legal advisers to the Minister if they could quote cases from other jurisdictions but could not refer us to judicial determinations in our jurisdiction. I take it, therefore, that there are no such judicial decisions.
The Senator has a pained expression but that will only stimulate my concern, for what it is worth, and it will not appear on the Official Record.
I recommend Deputy Alan Shatter's book on family law if the Senator is seeking clarification of a definition. The book is in the Library.
I am prepared to sit and listen and I will not show a pained expression if the Senator wishes to make her point.
I am making my point.
If we are to be subject to an intolerant reaction because we are trying to do the job we have been sent here to do and for which we are paid——
I take issue, Senator. I did not show any intolerance.
I misunderstood the expression.
The Senator certainly did. I offered him assistance in referring him to read Shatter on family law which might succeed in enlightening his mind on the issue.
I could not see my good friend Senator Norris's expression.
It was inspiring.
I will not have Senator O'Kennedy misread my face through remarks or otherwise.
I ask the Senators to address the Chair.
I take grave exception to the Senator reading my facial expression——
I am sorry.
——in whatever way he wishes. I am a Senator who is as well read in the law as Senator O'Kennedy and I am entitled to sit here——
The Chair has no control over that. I am calling Senator O'Kennedy on the amendment.
The record of the House always shows what is said. It does not show the visual expression so I am glad the Senator has clarified that it was not in any sense offensive. I accept that and I regret that anything I reacted to verbally——
Senator O'Kennedy on the amendment.
The judges will have the advantage of seeing the facial expressions of the witnesses.
I have a pained expression but the Senator is not interested in it.
I am not allowed because of the Chair's ruling. I would love to address the Senator but I am not allowed.
Senator O'Kennedy on the amendment.
The Minister mentioned the advice he was given that this is the basis on which the courts will be guided. How valid, informed and significant is that advice? It is a matter of opinion from somebody in the Attorney General's Office or the draftsman's office or wherever else. Such advice is not of great significance. Of course, it is important that the Minister would have the advice of the professionals in his Department and in the Office of the Attorney General. However, in terms of what we require here, we are still not only free but obliged to consult our own advice, the advice of other individuals who are qualified in law, or our own instincts as to what might happen. In so far as there are no decisions of record, as the Minister has now acknowledged, in relation to living apart, I am not happy that it is to be the basis on which we are to proceed and that "living apart" will have a sacrosanct or precedented meaning. I do not accept that and that worries me greatly.
I say that for the record because when people look later at the consequence of what we are doing they might read the apprehensions a number of us expressed. I still agree with the point raised by both Senators. There is an absence of court decisions and binding precedents. The decision of a High Court is binding on the High Court of equal jurisdiction and lower courts unless and until it is changed in the Supreme Court and there are no such decisions in relation to this as far as I can see. On that basis I am far from satisfied.
The Senator is pained.
I am not satisfied.
In that case I cannot grant a dissolution of the marriage.
I am afraid not. I will finish at this point. I wished to make my remarks for the record. I sympathise, to say the least, with the points raised by my two colleagues. They are well based and express even greater grounds for concern than I had thought before I came here.
Tarraingíodh siar an leasú faoi chead.
Tairgím leasú a 2:
I gCuid I, leathanach 7, líne 7, "go fisiciúil" a chur isteach in ndiaidh "ina gcónaí"
agus
I gCuid II, leathanach 7, líne 22, "physically" a chur isteach i ndiaidh "lived".
I move amendment No. 2:
In Part I, page 6, line 7, after "ina gcónaí" to insert "go fisiciúil"
and
In Part II, page 6, line 22, after "lived" to insert "physically".
The question is: "That the amendment be made."
Vótáil.
The question is: "That the amendment be made." On that question a division has been challenged. Will those Senators calling for a division please rise in their places?
More than five Senators stood.
Rinne an Coiste vótáil.
Tá
- Lee, Joe.
- Quinn, Feargal.
Níl
- Burke, Paddy.
- Cashin, Bill.
- Cosgrave, Liam.
- D'Arcy, Michael.
- Doyle, Joe.
- Enright, Thomas W.
- Farrelly, John V.
- Gallagher, Ann.
- Henry, Mary.
- Honan, Cathy.
- Kelly, Mary.
- McGennis, Marian.
- Magner, Pat.
- Maloney, Seán.
- Manning, Maurice.
- Neville, Daniel.
- Norris, David.
- O'Sullivan, Jan.
- O'Toole, Joe.
- Reynolds, Gerry.
- Sherlock, Joe.
- Townsend, Jim.
- Wright, G.V.
I would like to make a point arising from the Schedule. Part II, paragraph iii states: "such provisions as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law, and". I do not imagine that much can be done at this juncture but I seek information from the Minister on foot of correspondence I received from concerned grandparents who wish to have access to grandchildren after a judicial separation.
They represent a number of grandparents who have had difficulty in cases of marital dispute where a judicial separation has been granted with custody of the children being awarded to a spouse — and they anticipate a situation ensuing in the aftermath of divorce where there is an acrimonious separation and custody is awarded to one parent — and the other partner in the marriage does not activate visiting rights or display a particular interest in the child but the grandparents have no role in terms of visitation rights with their grandchild or grandchildren which is something they actively seek. I raise this because it seems relevant to the provisions, although there is no point tabling an amendment as it would not be germane.
I understand the Minister is conducting a review of the Guardianship of Infants Act, 1964. I want to flag the situation at this point so that, perhaps, in his review of that Act, consideration may be made for the interests of grandparents. A point which was forcibly made — and I think it is a good one — is that in a situation where, as I say, it is not an amicable separation and the child is left in the guardianship of one parent, there is a lack of gender balance. They may feel the need of a mother figure or a father figure, whichever it is, which could be supplied by grandparents who actively wish to supply that need but are prevented because there is no provision to give them access to the children.
I recognise there is nothing in this which inhibits such access. In fact, there is reference to "any other person prescribed by law" but the feelings of the persons who wrote to me about this were so strong and I felt it was worthwhile placing them on the record and seeking a response from the Minister.
The point raised by Senator Norris is an interesting one. I do not think it has a connection with that which we are talking about in this Schedule, as it happens, but I take his point. I will certainly see if it can be considered under that ambit of a review which I hope to undertake in connection with the Guardianship of Infants Act, 1964.
I support Senator Norris's concern in this area and welcome the Minister's words. I also welcome the fact that his colleague, the Minister for Social Welfare, Deputy De Rossa, has set up a commission on the family. Perhaps all these sorts of matters can be looked at, not by looking at the family as just the nuclear family but, more importantly, looking at the role of the extended family too, which can be so important in cases where a marriage has broken down. The main support for grandchildren by their grandparents, as happens at the moment with judicial separations, is often underestimated. I hope the commission which the Minister for Social Welfare is setting up will address the family in the broadest possible terms.
Is it in order to speak on subparagraphs (ii) and (iii) of the Schedule?
Yes.
Does it not mean less to give a requirement that couples live apart for almost four years and then ask the judge to interpret whether or not there is a reasonable prospect of a reconciliation? One would presume if people have been living apart for four years, that there is no such prospect. Again, we do not know how the judge will interpret this. For instance, if one party insists that she or he still loves the other spouse, would that create a doubt in the judge's mind? Could a judge refuse a divorce on those grounds?
There is an obligation on the State, obviously, to ensure to foster the stability of families if there is a reasonable prospect of a reconciliation. That should happen, but the State should intervene at a much earlier stage and not wait until a couple have separated for four years, looking to see if they have been living apart and also if there is no reasonable prospect of a reconciliation.
Another issue which I want to raise with the Minister is that judges will be required to ensure that proper provision is made for spouses and children. We are not defining what that is going to be. I am concerned. I am sure the Minister has heard, as I have from talking to individual groups, particularly women, of the concerns which they raised about proper provision being made for them, how certain judges in judicial separation agreements have not made proper provision and how this has caused great difficulty, hardship and cost to them in pursuing further decisions.
We, as legislators, are not giving any definition. We are not deciding what the proper provisions will be. We are leaving it up to the judges. I think we are abdicating our responsibility. Even if we give them guidance as the Minister has indicated, it is still up to them to judge it in accordance with the Constitution. We do not know what they will decide proper provision means. Couples who have separated and had an amicable separation may have their arrangements changed by a judge in court because the judge has a duty to independently satisfy herself or himself that proper provision has been made. Putting all of this into the Constitution is creating a lot of difficulties for people which we will not be readily able to put right if this constitutional amendment is passed.
The question about the proper provision was the one which I was going to ask. Seeing that Senator Honan has asked it, there is no point in my being repetitive.
A couple must be living apart for the five year period. If couples have been living apart for——
Four years.
——ten years or 15 years, can they apply for a divorce straight after the referendum if it is carried?
The proof of people living apart seems to be creating a lot of discussion. Senator Honan had a valid point. Where one partner still loved the other and where the other wants to divorce in order to marry again, there could be a major problem under this legislation.
I agree with Senator Honan. We, in the Oireachtas, should be putting our interpretation on this rather than have a judge give his interpretation. We are the people who have been elected and are answerable to the general public whereas the judges vary in their backgrounds. At the same time, they are doing the best job they can. This is a sensitive matter. Senator Norris's valid point is relevant here too. I think the proof of separation for the period of time is definitely causing a lot of discussion. If the Minister can clarify it for us, it would clear the air and a lot of people would probably be better informed.
I want to intervene briefly in the debate. I think it is going very well but the burden of work is falling on a small number of Senators and on the Minister. I propose that we take a sos, which was not arranged on the Order of Business, from 6 p.m. to 6.30 p.m. with the agreement of the House.
Is that agreed?
I appreciate that.
Agreed.
Senator Honan raised the point about whether it is necessary to have the additional clause that "there is no reasonable prospect of reconciliation between the spouses". The Government believes that is important and that it is necessary even though there may have been the position that the spouses have lived apart for a period of four years.
Even so, what we are about here is only allowing the dissolution of a marriage which is over, permanently and irretrievably. The mere fact, per se, that they have lived apart for four years of itself in most cases would involve the fact, in addition, that there was no prospect of reconciliation, but not necessarily so. There could be a case and in case there are any cases where the court feels, notwithstanding the absence for four years, that there is a prospect of reconciliation, that is not a marriage which the Government would wish to allow be dissolved. As I have said before many times, we are not talking about allowing the dissolution of any marriage which can be saved. It follows that if there is a reasonable prospect of reconciliation, then that is not a marriage to be dissolved. We are talking about dissolving marriages which are totally and permanently irreconcilable.
Likewise, on the condition as to the "provision as the Court considers proper ...", the terms and details which the courts will take into account there are set out in section 16 of the Family Law Act, 1995. These are the sorts of considerations which the court takes into account.
In reply to Senator Honan and Senator Cassidy on that point, even in an Act one cannot set out the detailed provisions of the huge multiplicity of cases that will arise. Every case is different and it hard to find two cases where the assets, income, prospects, ages, length of marriage, needs, etc. will be the same. Of necessity, whether we like it or not, we have to leave the discretion on those provisions to the decision of the court, having heard the circumstances of each family. We give the general guideline that before granting the divorce the court must be satisfied:
that such provision as the court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law.
For example, a person in respect of whom a spouse was in loco parentis could be covered by that clause. These are right, proper and necessary provisions. Some people may regard this as a strict form of divorce, but that is a matter of opinion. This Government is not interested and not prepared to introduce “quickie” divorce, a divorce culture or anything which could lead to it. That is why these clauses are being put in the Constitution.
The Government has put this forward; others have talked about and advocated it, or criticised it for one reason or another. But when they had the opportunity to bring forward a provision on divorce they failed to propose anything, good, bad or indifferent. The Government has grasped the nettle, recognising the need of many tens of thousands of Irish people. We must assist them and give the opportunity to the people to decide whether marriages which are long since over can be dissolved.
The key basic conditions which have to be observed are being written into the Constitution to secure that position and reassure those who want the position of children to be safeguarded. They will see that the Constitution specifically covers children and the position is permanent and irrevocable in that it cannot be changed without further reference to the people in another referendum. People want and require that reassurance, which is why it is being written into the Constitution. Likewise, strict conditions are being laid down to ensure no marriage will be dissolved unless it is long since over and "there is no reasonable prospect of a reconciliation". If those conditions are not met the Government does not support the position that such a marriage could or should be dissolvable.
I do not question the Minister's bona fides or intention but I note he said the Government does not propose to introduce "quickie" divorce or anything which could lead to it. That may be the Government's intention but it will lead to precisely that.
It has regularly been said that people are forced to live together in a hell, in a relationship which has broken down. I do not support any such compulsion on any citizen. Equally, the existing law does not require any citizen to be obliged to live in that hell. Under current law, every citizen is free to terminate a marriage or the obligations of a marriage by agreement, by deed executed in law, by an understanding, or through the courts. I use the word "termination" as distinct from "dissolution". It is suggested that if we do not do this we are obliging people, particularly women who have been maltreated or oppressed, to live in a hell. I would not accede to any such burden on any citizen, much less a woman being maltreated or abused. The law would owe every person the security and support to ensure she would not be subjected to that. Those of us who have reservations about this legislation and will be voting "no" in the referendum, which I will be doing, are not aligning with those who ill-treat or abuse women. Quite the opposite. We want to show a respect for women and their role in order to protect their status, happiness and security in this society.
Dissolution is different from termination and it is important to look at the Irish text of the amendment because if there is a conflict it will take precedence. The amendment states:
Féadfaidh Cúirt a bheidh ainmnithe le dlí scaoileadh ar phósadh a thabhairt sa chás...
"Scaoileadh" means to release. It does not say "a chur ar dheireadh", to end or to terminate. I think the English translations is fair in using the word "dissolution" instead of "termination". A termination has a terminus ad quem— it has a specific limit — but it does not dissolve all the elements of marriage. Let no one be in doubt. I and my colleagues do not suggest that women should be obliged to live in a hell with someone who has proved that he neither appreciates nor respects the civil contract of marriage. I could not possibly subscribe to that.
I am however concerned about the consequence of the proposal here to allow a dissolution. This is totally different; it means the marriage and all its elements are dissolved and have disappeared —dissolvere. One is then free to remarry, and to remarry again, and to remarry again. On Second Stage I asked whether the possibility of further remarriage arose at this point or if there was no question that one could only remarry once. The Minister thought it unlikely there would be more than one remarriage, one would need great or almost inhuman stamina to go through it again under the terms in the proposed amendment. That is quite extraordinary when one considers what happens elsewhere. The Irish are not less equipped with stamina, physical or sexual. Sexual stamina is healthy and vigorous, a wonderful instinct. Our poetry and literature is full of it. We compete with the best when it comes to stamina so that observation of the Minister is not reassuring.
I am concerned for that reason that we must not let the notion be put abroad that we are only considering the right to remarry once. We are talking about the right to remarry again and again.
I addressed a number of issues earlier which I wish to develop further. I ask the Minister to confirm, with the status and authority of his office so the public can hear it from a member of Government, that the right to terminate the obligations of a marriage under a deed of separation or court order is available under existing law. The public should know we are not and have not been obliging people to live in oppressive and brutal relationships.
We are not just discussing the termination of contractual obligations, which can be done by a deed of contract or separation or what is called a decree of divorce a mensa et thoro. We are discussing the dissolution of the elements and all that represents so that it no longer exists in any form in terms of residual obligation or responsibility. To that extent, in so far as the first civil contractual obligation — I only intend to address the civil aspect — has been dissolved under the proposal, people are free to enter another contractual obligation. This means they will be free to enter another contractual obligation if the second contractual obligation does not work out, subject to the terms of the Bill, and they will be free to enter a further contractual obligation. In other words, they will be free to remarry and remarry and remarry.
If not deliberately, the statements issued by Government sources use contrasting jargon terms. The Minister also mentioned the jargon terms which are used. "Grasping the nettle" implies a courageous action but another jargon term, "sweeping under the carpet", implies the other extreme. There are two sides; some are grasping the nettle while others are sweeping under the carpet. This is not a good rational intellectual basis on which to discuss any issue. We should get rid of the jargon and discuss the matter in terms of analytical facts. We should grasp the nettle but perhaps the nettle I am grasping has a deeper root than others.
I am concerned about the consequences to society and its stability and happiness. I am concerned about relationships between people in that society, not just within families but between them and extended families. This has been a happy and stabilising feature of community life. From the research conducted, is the Minister aware of the situations pertaining to the American and English jurisdictions with which we are most familiar, as was pointed out previously, because we are in contact with them through television, films and the media?
It has emerged and it is beyond contradiction that of the marriages which are entered now in the United States in the pattern of the previous three years and more, 10 per cent will subsist on a permanent basis. Approximately 50 per cent will be dissolved within three years and of the other 50 per cent, a small proportion, representing 10 per cent, will stay in permanent contractual social obligations. We should be aware of where we are heading if we introduce this change which is meant, we are told, to face the facts of oppression and suffering in marriage and that people are entitled to a second chance.
We may as well examine the other facts which clearly exist regarding the influence on children. I accept an unstable relationship is not a happy environment for children. I accept it is not a healthy or happy environment for children who are constrained by an unstable relationship between their parents. This is why we must examine the provisions we make for children in such relationships. As the research conducted for our party clearly indicated, although it has not been clear from statements in that regard, the establishment of a new relationship which is not a natural one of contact with the children has an additional cumulative traumatic effect.
I go along with the point regarding children not being forced to live in an unstable home. However, that aspect does not allow us to attempt to conceal the fact from the public that, in addition to the traumatic effect on those children of an unstable home, the remarriage of one parent to another person adds an extra dimension of insecurity and instability. I make this point quite deliberately and advisedly. I can quote statistics to prove this, but the most important statistic of all is my experience.
I have seen, lived and worked with those children in Belgium, France, Italy and Switzerland and have seen the effects of divorce and remarriage on them. I have also seen the instability, insecurity, pain and trauma experienced by them and seen it replicated in their own marriages. If we want to close our eyes to that by saying we are simply giving someone the right to a second chance, we are distorting the facts. It is not the right to a second chance but much more which concerns me greatly at this stage.
The Minister said we are only talking about dissolution of marriages that are over, whatever that means. We think we know what it means, but how does one define it? Is it because of an irretrievable breakdown? That term is not used in the Bill. Is it because of the evidence of one or other of the parties? That has not been made clear here either; it cannot be. By its nature, and I find this both legally and socially faulty, one cannot guarantee that what we want to happen will happen. If this referendum is passed, its consequences will be very different from the statements made here.
The Minister also said he was not trying to provide the facility of "quickie" divorces and a divorce culture. That might be the case in other countries but it will not be so in Ireland. How can the Minister or any member of this or any other Government confidently say that? If divorce with the right to remarry is introduced in all its forms, how can we say we are not introducing a divorce culture? Is the Minister saying this because of the constraints laid down in the Bill?
A court can only act on the evidence available to it, not on instinct. That is what the judges are bound to do under the oath they took. If the evidence is not there, they are not acting in accordance with that oath. If there was no risk against giving people a second chance of happiness, how could one argue against giving people one or any number of chances if they so desired? However, we may be leaving large loopholes in view of the practice and procedure in court and the evidential obligation we impose on a judge under this jurisdiction.
If the applicant asserts in law and evidence that they had lived apart from their spouse for five years and the respondent is not there to question or contradict this — they do not have to attend as the Minister knows — there is only one base of evidence before the court and the judge. The judge might not like the look of the applicant. He may question him and use all his experience on the bench to form a conclusion as to whether he is telling a tissue of lies, but he is bound by the evidence. I truly believe we will see people swearing to something that is not in accordance with the facts.
If the applicant swears he has lived apart from his spouse for the last five years and satisfies the other conditions, who can refute that evidence? Will it come from someone who invades the most fundamental right to privacy enshrined in law in our Constitution? Are we seriously thinking that this kind of evidence will refute a statement made on oath? I do not expect any court to accept such evidence as a rebuttal, much less a refutation or rejection of evidence given on oath by somebody acting in collusion with a partner who wanted a divorce so that both would get another chance.
I will not ask the Minister to answer the impossible. Any lawyer knows there is no other basis on which a court can act and there can be no evidence to the contrary unless someone volunteers it. What kind of volunteer can it be? It can hardly be the children, or can it? At least our law in respect of children has improved over the years. Before the enactment of the Married Women's Status Act, 1957, the father had the primary right of custody in the event of marital breakdown. Understandably and quite properly that has changed. Initially the woman was given an equal right to custody and the court adjudicated between the conflicting rights of both mother and father. Fortunately in time we not only discovered but asserted in our law that the only criterion to be considered by the court in matters of custody is the welfare of the children.
There is much talk about rights these days while responsibility seems to have receded into the background. We are all exercising our rights as if we lived in our own individual worlds and the exercise of those rights had no impact whatsoever on anyone else. This ignores the fact that we are all social beings and that our actions impact, for good or ill, on other people who also have rights.
Who will represent children should all this come to pass? I dearly hope it does not come to pass in light of the experience in other countries and my concern for my own children and extended family and the happiness that we and others have been privileged to share. However, if it does come to pass, who will represent the interests of the children? That interest should be separately represented if we introduce a divorce jurisdiction. If we say that the children's rights are primary and fundamental, there must be someone to represent them.
It may well be that those children will not be capable of communicating the hurt and pain they feel when they get the word that mother or father is going away. The parents might not only be unable to accommodate each other, they might be at loggerheads with each other. However, that does not prevent the children from having a deep affection for both individuals. They may be hurt and not want to be apart from one or other or both of them. They certainly do not want their father who took them to hurling or soccer matches when they were youngsters replaced by another man. Are we saying they do?
Are we saying that in order to assert this right to remarry we are prepared to ignore the social consequences? No right can be exercised in isolation and if we operate on that basis as legislators we are fooling ourselves. Is it not time we started to promote the idea of responsibility and that we are a community? How often have we heard in recent years that there is a breakdown of the fabric of society and that the Garda, the judges, the politicians and the Church are doing nothing about it? It is always somebody else's responsibility. What are we, as parents, doing about it? Children have been hurt under the current situation by troublesome marriages and conflict but they are hurt much more by the instability — and I personally witnessed it — when other people are brought into the home. We should demonstrate beyond any doubt that, irrespective of what rights we may intend to assert, we have a fundamental and primary concern for children.
I mentioned in the debate on the Family Law Reform Bill that it is as well that the individual correspondents who write for our newspapers or communicate on our radio and television are not making this decision. These people make their own judgments for their own reasons; there is nothing wrong with that because they are entitled to them. However, as many as 95 per cent of them have made up their minds — I do not propose that they interpret my position as intolerant — as to what it is to be tolerant. I reject that and repudiate it as being intellectually offensive and socially unjust. One sees it in the newspapers every day.
When we debated Second Stage of this Bill we might as well have been out at the Forty Foot as far as the media was concerned. I know there was another more sexy — if I might use the term — political issue being debated in the Lower House. I am not saying we want publicity for ourselves but we had a reasoned debate and some colleagues made very good contributions but not a word was reported on our national television or radio.
That is true.
It was as if we were not here; it was as if the logical arguments which many of us advanced and which the Minister answered did not exist. I protest against that censorship. This is a democracy and nobody is entitled to censor views that do not fit in with the individual commentators and gurus who take upon themselves the right to tell us how society will be enlightened.
I respect individual views but if I wanted wisdom, tolerance, information and knowledge I would probably travel as far as I could from the Dublin based media and find some wise, informed, tolerant and loving person with the necessary information and base of life and experience. There I would learn and get understanding and information which I will not get from the Dublin based, caged media which have already decided what we should do. I protest against their distortion and their censorship. Let them censor us again if they wish; I do not mind.
I do not have a personal complaint because at least they quoted me. It is interesting to mention the only quote they took from my contribution. I made some preliminary statements and stated that, as a democrat, I would accept this Bill and the result of the referendum. The Minister and everyone else here will remember that I said much more. The only paper which reported anything I said, reported those two facts in isolation. I protest against that distortion and censorship. If I have to travel somewhere else to express my view I will. I will not allow that kind of distortion to happen.
As we are dealing with this matter again, and I am attempting to express my reasons such as they are, perhaps someone will report those views and the people can decide for themselves. As a democrat I will accept that decision.
I will be brief. I share many of the sentiments articulated by Senator O'Kennedy. I am still uneasy about the evidence the Government has mobilised in support of its assumptions about what the implications of this amendment to the Constitution will be, assuming that it is passed. I accept that none of us can confidently predict what will happen. I am attempting to tease out the implications of the data advanced by the Government in support of various assumptions. I have not been reassured by the further information that has come to hand regarding divorce rates in the English-speaking world in general.
The English-speaking world, of which Ireland is a part, has the highest rate of divorce of any cultural cluster in the world. It has a higher rate than even the Scandinavian cluster. Australia, New Zealand and Canada are all high divorce cultures at present but I am open to correction on this. There is some data regarding Kazakhstan which appears to affect the overall picture. However, in global terms, we are increasingly importing the values of the English-speaking world — not necessarily because it is English-speaking, though there may be some correlation. My disquiet at the implications of moving in that direction has not been allayed.
I have two questions for the Minister. First, if the Government is confident that our culture is likely to be so resistant to divorce culture direction impulses, why is the four year delay necessary? The four year delay is being included to prevent the danger of that overtaking us. If we are so confident in the first instance that we are not really vulnerable to that danger then the four year wait seems to be logically unnecessary. If it is deemed necessary then it must expose some uncertainty about our culture to resist the type of pressure many of us, including the Minister himself, would find distasteful.
Second, on page 1 of the document The Right to Remarry the first statistic quoted is that of 75,000 spouses whose marriages have effectively come to an end. The second statistic lists the decline in the number of marriages from 18,573 in 1986 to 16,297 in 1994. Those figures are given in a single sentence. I am not clear what are the implications of those statistics or what the Government intends us to read into them. Could the Minister inform us as to the relevance of those figures to the case the Government is making?
At the outset of his contribution Senator O'Kennedy was kind enough to say that he respected my bona fides on the arguments adduced in this matter. I return the compliment. I also respect his bona fides regarding this issue. However, I fundamentally disagree with the tenets he has adduced. I think the Senator is aware of that because we exchanged our views in considerable detail on that matter at Second Stage. He has not changed his views and I have not changed mine.
The Senator asked me to confirm, if such be the case, that spouses are not compelled to live with each other in this country and that people may separate either voluntarily or as a result of a decree of judicial separation. I am happy to so confirm. Under Irish law, people are not compelled to cohabit. With regard to a decree of judicial separation, the effect of it is that the two people concerned — as a result of, and following from, that court order — live apart permanently for the rest of their lives. That is the current legal position. There are many people in Ireland who live apart from each other permanently for the rest of their lives as a result of those court orders. I confirm that that is the position.
Senator Lee raised two questions. He inquired as to why, if we do not have a divorce culture, is it necessary to have the four year waiting period. There are many reasons why we would not have a divorce culture in this country. One of the reasons is that the Government is providing, by way of the amendment to the Constitution, that there will be a four year waiting period. If there is a four year waiting period — and a period of one to two years before the case is disposed of in court — that is an additional factor in ensuring there will not be a divorce culture so far as this Government is concerned. That is why it is proposed to write those very strict terms and conditions into the Constitution, subject to the consent of the people.
I believe Senator Lee also made the point in relation to the significance of the figures contained in the document The Right to Remarry, referring to the numbers of people in breakdown situations in 1986 and the numbers in similar situations at present. Those figures illustrate a point I referred to previously. While there have been increases in marriage breakdown in other countries, we have not been immune to that regrettable and sad phenomenon ourselves. It bears repeating that in 1986, the anti-divorce lobby informed us that the retention of the prohibition on divorce in the Constitution would contain the figures for marital breakdown in Ireland. The figures quoted in The Right to Remarry show that the opposite has been the case. The figures for marital breakdown in Ireland have doubled since 1986, notwithstanding the fact that the prohibition on divorce was retained in the Constitution. The fact that there has been no divorce has not meant there has been no marital breakdown.
That was not my question. My point was in relation to the fall in the number of marriages from 18,573 in 1986 to 16,297 in 1994. What meaning are we to derive from that?
It is merely a factual statistic. The number of marriages is declining.
What is its analytical significance in terms of a divorce debate?
The Senator is a historian, I am not. He can place his own interpretation on it.
It is your document, Minister.
It is a relevant statistical figure.
Relevant to what?
Relevant to the evolution of family patterns and marriages being formed and breaking down in Ireland.
Is the implication that if we had divorce that would not be happening, it would not be happening that fast or would happen faster or what?
It is an indication that there is a prohibition on divorce and over that same period it is interesting to note that the number of marriages taking place is declining.
Why is it interesting to note? Is the implication that if the prohibition were not there the number of marriages would not be declining?
I make no implication about that; we just point out the fact that the number of marriages is declining. There may be many reasons for that.
If it is a relevant fact it has to be relevant to something. If it is not a relevant fact what is it doing there?
It says: "While the rate in marriage breakdown has been increasing the numbers of people entering marriage has been decreasing steadily." The number of marriages in 1986 was 18,000 and this had declined to 16,000 in 1994. This is an analysis on the evolution of family patterns in Ireland from 1986 until now. That must surely be a relevant factor in the debate on the evolution of marriage patterns and family patterns in Ireland. If the figure was not given somebody no doubt would raise the fact that this key factor was not there.
One can put many interpretations on it. There are many people in Ireland living in second unions to which the tie of marriage cannot be applied and they are increasing in number. The rate of marriage is decreasing. Perhaps it may be argued — I think it is a fair point to make — that if the ban was not there many of those who are now in second unions would wish to get married and thereby reverse what must be a disturbing trend to all of us, namely, that the numbers of people in cohabiting unions are substantially on the increase and the numbers in marriage are decreasing year on year. It is a relevant factor.
I appreciate that because now a causal connection is imputed. My problem is that when one looks beyond this jurisdiction one finds, for example, in Northern Ireland that the marriage rate over the same period has declined at a faster rate although divorces have risen by 50 per cent. The imputed connection, if it is a connection, is unique to this jurisdiction. If we look at European countries we find the type of correlation posited simply does not exist in any consistent way. That is why I wondered if this particular statistic is included as an explanation of something.
It may well be the Minister's reasoning about cohabiting is the explanation but when we put these figures in comparative perspective it would at least raise a question mark about the Minister's hopes that in the context cohabitations will be regularised. I simply wanted to know what was behind that statistic.
Senator Lee has questioned the inclusion of information which could be neutral in terms of what we are trying to address, namely, the consequences for our society of the introduction of divorce law. As he has done throughout the course of this debate, the Minister has acknowledged that it is not meant to be coercive one way or the other, but the fact is included.
There are elements that should have been included that would be informative in the people coming to a conclusion as to whether they should introduce a divorce jurisdiction here. One element is the experience of other countries in relation to the effect on marriage, marriage after divorce or a second marriage after divorce. There is considerable evidence from statistics and clinical psychologists which, if it was made available by the Government in its information leaflets, would have the Irish people pause as to what the consequence of divorce in our society would be.
If the evidence demonstrates that 50 per cent of the marriages in the divorce culture of America break down after three years, is that not worth bringing to the attention of the people? Is it not worth bringing to the people's attention that divorce has become the norm in that culture? Do we believe that we will be isolated from all of this or that we are of a higher order of humanity than the American people and that it could not happen here? Is it not appropriate that we might tell the people in the Government's information leaflets that only 10 per cent of recent marriages in America will survive as committed partnerships? Is that not relevant or will we be insulated from the consequences? Are we so different that it will not happen here? Should that not be included in the "information" supplied to the people?
Let the people decide. I do not question the reference to the people but I question selective presentations that do not tell the full story. Some might say it is not the Government's job to produce all the statistical data as it is proposing the change. I believe it is. I do not share the view of any particular lobby group. As I said on Second Stage I do not belong to any lobby group; I lobby only as a parent and a public representative, although I do not question any lobby interests. It should not be the right, obligation or prerogative of any other group to bring up all these statistical facts; they should be made available to us in the leaflets. I hope the Minister will tell his Department in the weeks remaining before the referendum to get whatever data is available from the English speaking countries, as they are the countries with which we would have most direct social or cultural contact, and produce the data.
Returning last night from business in Nenagh, I listened to two eminent American clinical psychologists, whose names I do not have here but I will give them to the Minister later for his information, teasing out, analysing and discussing without emotion or hyperbole for over an hour and a half, like the old Platonic dialogue, in a reasoned fashion. I wish everyone could listen to a tape of the discussion and realise the kind of society we are at risk of following. I greatly worry about it.
I have another reservation in arguing this. I do not claim any personal qualification in this regard but some of my best friends may have difficulties in marriage. We all have difficulties. I do not wish it to be seen that any of us claim a virtue or quality we do not attribute to others. That is a reservation I have about engaging in this debate at all. I am as fallible, weak and selfish as anyone else. I am as much concerned for my selfish independent right as any other married man. However, selfish as I may be, I do not think I have a right to insist that right is the only right that comes into play.
I wish the Government would start to get across the message of responsibility in relation to the whole agenda. This is a rehearsal for marriage and what kind of rehearsal is it if we tell our young people, through Government sponsored television advertisements, that being responsible means using a condom? That is the kind of responsibility we are talking about — the quick fix and the easy let out. I do not regard that as responsibility or as giving the proper conditioning and example to young people. That kind of presentation from Government will almost ensure that the condition which is endemic in other countries will follow here.
We use euphemisms. We used to say "promiscuous" but we now say "sexually active". That is a subtle invitation to young people not to consider the consequences of their sexual activity. What youngster of 15, 16 or 17 years is going to regard being sexually active as wrong? They might start to be concerned if they were told that they were sexually passive. We are not just talking about what happens in court cases but about the conditioning of our society. It is time to take a deeper look at the basis of real responsibility and happiness, which we have not done.
I do not think that, in coming to the conclusions to introduce legislation of this kind, the consideration given at Government level — I do not mean this Government but the Government of which my party was part — was based on detailed social research and analysis. The consideration, in my view, was based on political priority. That is not a good enough reason for proposing such a major change. I am not concerned about who sits in Government, with whom and for how long, but with the nature and stability of society. It is not a good enough reason if it is laid down as a condition of continuation in Government that such legislation is put through. I have never said that before but I want to put it on the record. If someone told me that my party agreed to this because there were discussions when we were in Government, I would have to say it did not happen with my knowledge or after consultation with me or my party. There might have been discussions among individuals but that is not the kind of consultation and social research which should be undertaken. That is why I am anxious that we do that job now.
Sometimes what one says may give the impression that we are dragging out the debate. There is a terrible tendency in our debates on social legislation to want to pass it quickly. That is what I call sweeping it under the carpet. People saying "Is he still going on?", "What time is it?", "When is he going to finish?" or "I thought we were agreed on this" is a sad reflection on our representative democratic role and I do not propose to go along with it.
One of the four conditions set out by the Minister in this section is that "such provision as the Court considers proper having regard to the circumstances exists or will be made for the spouses, any children of either or both of them and any other person prescribed by law". It is reasonable to make provision for the children of either or both spouses from previous marriages or the new one. Is it not a simple, basic fact that I, as a parent, can provide within my limited responsibility for my children? Is not equally a fact that my capacity to provide for my previous wife will be diminished considerably by the obligation which the court will have to impose on me to provide for my next spouse? What else can the court do? My capacity to provide for the children of my first marriage will obviously be diminished and limited because of my obligation to provide for the children of my second, third or fourth marriages.
There is a precedent in law, with which I am sure the Minister is familiar, which concerns a very prominent and revered name in Irish jurisprudence, the late Mr. Gavan Duffy, the Chief Justice of Australia. Our law was changed — we used to joke about this as students studying rights of succession — because he was born when his father was well into his eighties. It had to be changed because the old fee simple grant to A and his heirs — to Michael O'Kennedy or Mervyn Taylor and his heirs — was taken to be an absolute title transfer until a person was incapable of having heirs. The law now is that the court will adjudicate on a woman's capacity to have offspring on the basis of medical evidence but the law judges a man to be capable of having offspring until he dies; so much for the Minister's reservation about stamina.
With that legal capacity, allied to physical capacity, we have the prospect of third and fourth families. The Minister may correct me if he disagrees with that statement but that is the position. We are now suggesting to existing wives and children that this new right we are introducing is only fair and will have no effect on them — not much it will not.
I want to put aside all the terms and jargon used in support of weak arguments. One word which is used a great deal is "scaremongering". The Minister used the term a few days ago, although he did not use it today. The dictionary of acceptable terms for this debate includes "scaremongering", "sweep under the carpet", "grasp the nettle" and other nonsense. Let us use terms in a way of which we are proud and get rid of the jargon, now that Séamus Heaney has followed the pattern of other distinguished Irish writers. It will be a very major change and a delimitation of the rights of existing wives — I am speaking as if it is always the wife who will be offended; for the purposes of my case let us make it that way — and children, for which the court will have to make provision. This provision, which the Minister intends to be in case of the parties, can only operate to diminish, delimit and reduce the right of existing parties, some of whom will not under any circumstances want to have a remarriage after divorce.
Part II to the Schedule states:
A Court designated by law may grant a dissolution of marriage where, but only where, it is satisfied that—...
iii. such provision as the Court considers proper having regard to the circumstances exists or will be made for spouses, any children of either or both of them and any other person prescribed by law,...
We have now broadened the net. What is to be the position of any husband in respect of whom this is being done? Where are the resources going to come from? The Minister must know that there is a limited capacity, even for professional or business people who have access to considerable income.
The fact of the matter is that the rights the woman has under existing law will accordingly be diminished by having to share them. I will listen to the Minister if he will tell me this will not be the case, or that there will be a State support grant, with details as to its cost, to ensure that the share that one would be entitled to if there was never a remarriage will be maintained. However, I have not heard anything on this. How is it going to do other than diminish the rights of people who are both blameless and in many cases opposed to divorce, even though it may mean them putting up with much, perhaps even of suffering and of pain.
I have respect and admiration for Irish women and for Irish mothers who have put up with a hell of a lot from our type. I also know that the one thing they would still feel they would want for their children is the protection and security of their home, a reasonably guaranteed income and access to same. This will be diminished under this provision. It makes me very apprehensive. I hope nobody calls this scaremongering, because if the Minister can refute what I say I will accept it.
The Schedule goes on to state: "iv. any further conditions prescribed by law as complied with". That is reasonable. Any judge should be allowed to make whatever conditions he wishes. However, do we know what they can be? Is there any definition of what they might be?
In trying to vindicate the right of people to a second chance to remarry, we are putting many other rights at risk. Those of my generation were fortunate enough to get married, with all our imperfections, implications and faults, at a time when the culture was a family culture, when marriage was for life and where the commitment was for life. We did not live in cloud cuckoo land. We knew that there were people who failed and that there was always the risk that we might fail. However, we lived and grew up in an environment, the social mores of which made clear that this is for keeps, this is something we were going to have to work at. Everybody told us that it would not always be fine weather, that there would be rainy days and so on. Even the songs of those days referred to this. It was not always meant to be easy.
However, we made a commitment and we knew that the members of the community in which we were making that commitment were all in the same position. Some might be lucky enough to survive and have some happiness, and some might fail. We knew this. We were no holy Joes, but we had the stability of knowing that this contract was for life. The responsibility was for life. If children came, they had a primary right on us for life, until death did us part.
Are my children or the children of others now going to have the benefit of that same environment, that same secure, common purpose in our society? They are entitled to it. The generation coming after us is entitled to the same degree of security with regard to the stability of society and how we impact and interact on each other. In this case we are depriving them of that fundamental right so that the rights of some to a second chance can be acceded to. This is a huge price to pay. Unfortunately, if this goes through, those who are getting married three or four years from now will pay the price.
If we have problems in society at present let us try to solve them. Let us give support to families who are vulnerable. For example, our lack of social planning with regard to housing is awful. We are shoving all the vulnerable groups, the unmarried mothers, the unemployed fathers into one area in Tallaght and providing them with the best physical accommodation that one would get under any housing jurisdiction in Europe. We then worry and wonder about marriage breakdown. What else could we expect? Where is the enlightened social planning? Instead of looking at the cause of all these issues and providing a supportive position, be it in education, housing or whatever, we are following a line from which others are retreating. Other people talk about coming to Ireland so that their children can grow up in a certain kind of environment. Perhaps some of them will be disappointed.
I wish to see these vulnerable people getting a degree of support, security and happiness. However, we ignore the obligations we have on these social areas, especially in housing, where we invest countless millions of pounds. We are not slow about providing funding but are lazy and indolent about the infrastructural back up and the generational mix. We do not bother, put them altogether and then talk about the breakdown in our impoverished and deprived areas. I feel greatly for these people and have much more concern for the trauma of women in neglected social environments than for those living in a privileged social environment.
I appreciate what the Minister has acknowledged publicly here and his readiness to do it without any implication or snide comment. Having regard to the provisions of subsection iii of Part II to the Schedule, will the Minister confirm or deny, as the case may be, that this will have financial implications for existing wives and existing families in the event of a remarriage to another wife and another family?
The Schedule, Part II, paragraph iii, provides that the court may not grant a decree of dissolution unless it is satisfied that such provision as the court considers proper in the circumstances is being made for the spouse and any children. If the court is not satisfied on that condition the Article provides that the decree of divorce may not be granted. It is similar to the situation that pertains at present with regard to separation applications. Proper provision must be made under the Judicial Separation Act for spouses and children and this is a similar provision. We are talking about situations that took place four years ago because the separation took place then, otherwise the application could not be made.
When it comes before the court this condition will be laid down for the court by the Constitution, if it is passed, stating that unless provision is made for the spouse and children which is proper having regard to the circumstances, the decree of divorce cannot be granted. That is an essential protection for the spouse and the children. That would be the position on divorce as it is now on separation.
There is a difference. The position with regard to separation simply means that the provision the court will make on one date will be the only provision the court has to make in respect of children. The Minister said that it is the same provision the court now makes on separation. We recognise that a court makes provision on separation for the children or the rights of the separated wife. However, that will be the only provision made in respect of that husband under the current law because there is no other obligation except to the wife and the children.
Under what we are proposing to do however — and the Minister has glossed over this — when the court makes provisions it makes such provisions only as of that time. The new marriage, the new wife and the new children will have rights and the determination and exercise of those rights will limit and diminish the rights of the previous wife and children. That is the difference between it and the Minister's example of what the court does now in separation cases. No other unit comes into consideration in the separation agreement. However, under the divorce agreement there will be another one. If there is another divorce after that — which is the experience in many other countries — there will be yet another one.
It is proper that the wives and young people of Ireland are made aware of the fact that under this amendment the court's obligations will apply also to the children and wives of second and third marriages. Unless we suddenly acquire unlimited money to provide for two or three wives and sets of children we must acknowledge that we are diminishing the rights of the wife and children to whom we first made a permanent commitment under a civil contract; we are diminishing their rights and their inheritance. I would like that to be acknowledged. If we are not doing that the Minister should say we are going to supply something in its place. It must be acknowledged one way or the other because we should not be prepared to leave here under the false notion that it will not happen. Then let the Irish people, and particularly the Irish women, decide.
I presume if a judicial separation exists or an agreement had been entered into by the two partners that the couple would not be granted a dissolution of marriage unless the provisions of the separation with regard to maintenance, for example, had been carried out in accordance with the agreements. If spouses have not met their obligations under maintenance agreements made previous to their application for a grant of dissolution of marriage, I presume that would be taken into account by the judge and on that basis a dissolution would be refused.
Which family would have the inalienable and imprescriptible rights? We recognise the family unit under the Constitution. I presume that if there is a dissolution of the marriage and provisions are made which the court considers proper for the spouse and children and any other person prescribed by law that those provisions cannot subsequently be changed. If a man has a wife and children and obtains a dissolution of the marriage under which provisions have been made in accordance with the dissolution of the marriage, I presume that the man knows he has those commitments. If he moves into a second union and has more children, he is doing so in the knowledge that he already has these prior commitments.
Surely Senator O'Kennedy would expect these men to be responsible individuals. They cannot continue to have children and presume that the State or somebody else will pick up the tab. They have a responsibility. Surely he would not expect them to continue, as they probably would not continue even within their first marriages, to go on indefinitely having more and more children until, as the Senator said, they are ready to go to their graves. I presume we can expect a reasonable amount of responsibility and a realisation on the part of these people that they do not have infinite resources and that they cannot continue to support an increasing number of wives and children.
The Senator can expect it but will she get it?
As an individual he will make this decision. The woman he presumably will marry will realise that he has already been married and has children who must be supported. The limitations on available resources should be obvious to both people who will enter the second union. I cannot imagine how entering into four or five unions will become the norm because people's resources will be limited; they do not have unlimited resources. If they did, they could probably continue to enter further unions. However, even in their first marriage people realise that they cannot have large numbers of children when they cannot support them.
When the divorce application comes before the court — whether there is a judicial separation order in existence or not — the court will look at the provision being made for the spouse and the children pursuant to paragraph iii. The court must satisfy itself as a precedent for granting the decree of dissolution that such provision as the court considers proper having regard to the circumstances is being made for the spouse and children at that time. If there had been a maintenance order which had not been obeyed by one of the spouses it would be a key and important factor in the mind of the court when taking that into account.
A further point arises which I will clarify for Senator Honan. Even after a separation is granted or after a divorce under the draft divorce Bill is granted, it is open to the spouse or child to return to the court for a further variation order or for a property distribution order. That option remains open even after a separation or a divorce under the terms of the draft divorce Bill, which was published with the wording of the referendum. Subsection iii is inserted as a protection for spouses and children. Deputy Michael Woods, the spokesman for the Fianna Fáil Party, made particular reference to it. I agree with him that it is essential that it be there because that requirement would prohibit a court granting a dissolution unless the appropriate provision has been made.
It is not correct to say that second unions are not formed when people separate. It is not possible to form them under the protection of marriage at the moment but that does not mean they are not being formed and that further responsibilities are not incurred to a cohabiting partner and to children. Many people are in this position at the moment.
Senator O'Kennedy harks back to the good old days. He and I are more or less of a vintage. I suppose the good old days were wonderful but we must deal with the realities of the present situation. Under the proposed legislation the responsibilities of any parent to their children will continue irrespective of remarriage or divorce. The position of the spouse and children is specifically given constitutional protection here and ongoing provision is made for further applications to the court should the need arise if circumstances change from time to time. It is there because the Government is firmly of the view that it has to be there. I cannot put the matter more clearly.
The Minister has not responded to the point I made that, on any remarriage, there will be no extra assets to ensure that the share which the wife or children of the first marriage had remains intact. He acknowledges that their share will be diminished by the fact of remarriage and children of the second marriage. I asked him specifically if he could disabuse me of that concern but he has not done so. The rights of wives and children of second marriages will clearly diminish the share of the wife and children of a first marriage.
The rights of all parties are clearly delineated and will be maintained. That is in the legislation. Do not warp the situation.
The proportionate rights of all parties are maintained but the asset value to which the right is there will be shared among more people.
What happens now in second relationships?
How do you maintain rights in terms of quantity and quality when those rights will have to be shared with other dependants in the future? How can you say you maintain them? To do so is to make a nonsense of the English language. You can maintain their right to a right, but how can their right to the same inheritance be maintained when there will be more with whom to share it? The Irish people should be very clear on this point.
The Minister talks about me harking back. He knows I hate jargon. To say that I hark back to the good old days is a put down. The phrase is meant to sound almost like English vaudeville. I do not hark back to any days. I hark forward to better days. I am not caged in a time warp; far from it and I will not be caged by any comment of that nature. If they were good old days, is there any law against trying to maintain good new days, where the values and security that are important in this day and in the future will be maintained and vindicated by those of us charged to do it? I do not take that comment as a rejection of the case I am making. I would like the new days to which I hark forward to be as secure and as stable as the good old days. I would like them to be based on a responsible society which knows that no right is exercised in isolation.
No right can ever be exercised in isolation without impacting on other people whose rights also have to be taken into account. That is my concern. I share the concern of many others who have said that the new rights which will be introduced if this referendum is passed will diminish existing rights. I have grave reservations about that, and not just in financial terms. I am gravely concerned about diminishing my rights to permanent secure relationships.
Has the Minister noted the nature of the society that this legislation will change? Has he visited communities throughout Ireland where society is based on a mix of families who interrelate with each other, on hurling teams, football teams and for social activities? Does the Minister not understand that family and extended family is a basic bedrock in our communities? Has the Minister compared this with what is called the "step reaction" of children in other societies, where children are being constantly introduced as stepchildren of their stepparents in America? It is a feature of that society that the security we have with one parent is no longer a stabilising element for children. Are we to leave all that aside? I am not prepared to have that pushed aside by jargon which is not based on statistical fact or social reality. We will not have had a reasoned, informed debate in this country until such time as the Minister and his Government put forward the facts of the social consequences in countries where divorce is available.
Some parties have made a major political investment in this question for one reason or another. That is their business. I am not concerned about the political investment of political parties, I am concerned about the social investment of our people. I note the Minister accepts that the financial security — that is what it is — of the children and wives of existing marriages will be diminished by the exercise of rights to remarriage after divorce under the provisions of this proposed legislation, and that is regrettable. People have talked about the consensus in this House, but there is no consensus. I hope that despite censorship of the media which will not speak for the Irish people, we can look forward to the good old future times. I hope that other jurisdictions will see that we are in a privileged position by comparison with other divorce cultures; maybe we will set a trend in Ireland that others will follow.
I appreciate many of the provisions the Minister has made in relation to disadvantaged families are very positive. I would like the same provisions made in relation to maintaining the existing family as has been provided in the event of families being dissolved or terminated. A provision which comes to mind relates to rights of attachment to pensions in the event of family breakdown. It is time we gave the same rights of attachment for wives to pensions in the event of a continuing family unit. Why should my wife or any other wife have any doubt as to their rights? The right would be vindicated if a marriage broke down but as long as it remains in existence, it is not there. Where is the support for the existing family unit? The right of attachment to pensions arises under the Family Law Reform Bill.
I plead with the Minister that the same rights should apply to existing unions before any breakdown occurs. However, nothing the Minister has said reassures me. The people should know that the Minister has not been able to refute the fact that we would be diminishing the financial security of the existing family unit, that is, the wife or children, in the event of second marriage.
I point out to Senator Henry that when I spoke in terms of women making the application for divorce I did so for convenience rather than saying he or she in each case. I took for the basis of my case the fact that the majority — I still believe this to be the case — of applicants for this new facility will be women. I hope it is very clear that I am concerned for their wellbeing and welfare. I am not saying that is exclusively so and that there are not some men who are equally injured or traumatised but in the majority of cases we are talking about women and children and nothing I have heard today has given me any degree of reassurance in respect of the consequences of this legislation.
Cuireadh agus aontaíodh an cheist.
Acting Chairman
I remind Senators that in accordance with the Order of the House item 2 will be taken with Fifth Stage for the purpose of debate.
Cuireadh an cheist: "Go rithfear an Bille anois."
Now the Bill is about to pass I would like to say as I have at all times on constitutional amendments, particularly the pro-life amendment, that both as a member of Government and Opposition Front Bench, as I was at that time, I opposed the introduction of a detailed amendment. That is now known, although one was sometimes bound by a collective silence. I unsuccessfully pleaded with my colleagues not to accede to the requests of the pro-life movement to introduce details into the Constitution, which was for me a statement of principle as distinct from details.
When in Government I accepted the constitutional decision of collective Government, but my view did not change. It was widely known in my party and I argued it at parliamentary party meetings. I gave the reasons I believed the introduction of detail, in that case the pro-life amendment, would have consequences far beyond what we foresaw. I regret to say I have been proved right. A consequence of introducing detail into the Constitution was such nonsense as the vindication of the right to travel in a free democracy as if there could never be anything else but right. We were not talking about the People's Republic of China or the former Soviet Union.
We have lived to regret the consequences of writing detail into the Constitution. In my view the prior antecedent right to life did not need to be stated in a Constitution, which is one of the reasons it was not. The same rationale which guided me then does so now. I say with regret that if this Bill is passed, the detail we have written in as the conditions — although the Minister may see them as a guarantee against the introduction of a divorce culture — will achieve the opposite of what he wishes if I take what he said as being his deep and total conviction.
The lawyers who practise in our courts and the witnesses and applicants who will come before them will be able to make a nonsense of these limitations. They and the other parties, the applicants and respondents, will be able to collude to ensure that the only evidence brought before the courts is that of one of the parties which will not be contradicted by anybody else's evidence.
I am sure lawyers would not be party to that.
I did not say that. Lawyers can only act on what is made available to them. I do not want to leave society at the mercy of lawyers whose standards might not measure up, and there have been some. The Minister will be as aware of that as I. He is living in cloud-cuckoo-land if he suggests that there is no scope in this Bill for collusion, although the conditions which he would want have not been satisfied. There is considerable scope under the procedures on evidence which apply for that collusion. I find that regrettable. It is not good enough to say that a person can only get a divorce after four years. In my view the only definite limitation is that a person must be married for at least five years before they can bring an application for a dissolution of marriage. That and no more, because this law states that you must have separated over the four or five year period. That is the only effective binding condition. No one can actually change that through collusion, perjury or otherwise. I accept that so we may not get the same rash as in America, where after three years 50 per cent of the marriages are dissolved. In our case it will last at least five years. That is the only guarantee we have. That and no more under this Bill, and I find that unacceptable.
I find it regrettable that on a Bill of such vital social importance, for one reason or another best known to themselves, so many of the elected representatives of this and the Lower House have decided to not even express a view. What kind of representatives have we become? What kind of representatives are we? We are free, at least in my party, to say it. I have said it and I mean it. I will not be campaigning in that sense but I will be ready to engage in debate openly at any opportunity I get to try to persuade those people who will advocate that the introduction of this will be good for Irish society. I hope to engage people in debate. I would be happy to engage in debate in public with my colleagues on the Government side in my constituency or anywhere nearby. I wish to engage in debate with them in public. Will they please respond by engaging me in debate so that we will each go out before the people, explain our position and let them listen. I do not mean my position or some other Deputy's but the basis on which we want people to decide, because there has been next to a conspiracy of silence on this whole issue and that is a sad reflection.
Maybe I do hark back to other good old days. When I came into the Oireachtas and sat on these benches, some of the great names of Irish history were here with me. Former Senators Jim Ryan and Gerry Boland and, let me say, distinguished men on the other side, men who actually brought about the achievement of independence. They were still here when I arrived. Men like Lemass and McGilligan and, I am glad to say, Dillon and many others on the other side. I find it sad that here, 30 years on, our contribution seems to be best expressed when we say least, when we let the thing go through quickly and let everyone get home to their tea. I do not know. Embarrass nobody. I think that is sad. I do not think the people will thank us for it. We must have some conviction to warrant our representation here.
It is my dearest wish that despite the pressures and censorship of their views, the Irish people will reject the introduction of divorce to this country in the interest of the wellbeing and happiness of our society and of tolerance and support for those who deserve our tolerance and support in every possible way. May we show ourselves to be a concerned and enlightened society. It is my dearest wish that in five, ten or 15 years' time we will not see the dissolution of the whole structure of our society in the interest of what is called the right to a second chance.
There have been many contributions both on Second Stage and today on Committee Stage and I thank all the Senators who have contributed.
I respect the views of Senator O'Kennedy. I do not agree with them. I think they are flawed. The decision at the end of the day will be made by the Irish people in a referendum and that is proper and appropriate. These issues are ones which, in the view of the people, are basic fundamental matters appropriate to the Constitution and, consequently, appropriate to be decided upon by a referendum of all the people.
The Government and I, and, indeed, all the political parties in the House, agree we must face up to the family situations of tens of thousands of Irish people who are in the factual position where their marriages ended in all respects but name many years ago. Many spouses are in second relationships and wish to get married but cannot do so. I hope, taking the opposite position to that of Senator O'Kennedy, that the Irish people will indicate on 24 November that they understand and accept the reality of the situation of many thousands of Irish people.
These are real people. They are not statistics. Who are these people? They are members of our own families. They are our friends, neighbours and colleagues. They ask us, the people, to help their situation by giving them the option to regularise positions which many of them have been in for many, many years and not to pay lip service to the shell of a marriage which ended a long time ago and which exists in nothing now but name. That is the substance of this referendum.
I appeal to the voters of Ireland to come out and cast their votes on 24 November. I hope there will be a "yes" vote. The three Government parties have called for a "yes" vote, the Fianna Fáil Party has called for a "yes" vote and I understand the Progressive Democrats will also be calling for a "yes" vote.
Finally, I thank the Cathaoirleach and particularly all the staff in my Department who worked for a long time on this extremely difficult and complex piece of legislation. It has not been easy. The number of alternative ways to go about this dilemma were many and varied. We spent long hours with the advisers of the Department, the Attorney General and his advisers discussing the best way forward to help people who need our help on this issue. The longer the debate has gone on, the more convinced I have become that we have adopted the best and most desirable solution. I do not put this forward, nor does the Government, on the basis that this is a panacea. It is certainly not a panacea. It is not meant to be a panacea. It cannot be a panacea because we are dealing with sad and traumatic situations in which many people find themselves. It is intended to try to alleviate a situation which is there and to help those people whose positions can be helped by enabling them, if they are so minded, to regularise the family situations which they are in now.
I welcome the fact that the electorate is being given the opportunity to vote on the question of whether we should lift the ban on divorce in our Constitution. Since its foundation, my party supported the removal of the ban on divorce. Our policy has never changed on that issue. Our only problem with this, as the Minister knows, is that we disagree with the way in which he is doing it, that is, we disagree with writing the detailed legislation into the Constitution.
I do not believe divorce will cause marital breakdown. As the Minister said, it is already a sad fact of life. People who want a second chance, who want a loving relationship and want to be able to regularise that within the law should be given that chance. All of us know from our relationships, whether they are friendships or relationships within marriage, that the love, companionship and support which we get from them has a huge effect on the way we can sustain and endure the rest of our lives. Human relationships are the most important thing in anybody's life. Those fortunate enough to have happy marriages realise the wonderful strength and support which a happy marriage can give to the partners involved and to the children. Unfortunately, not all marriages are happy; a small minority break down and those involved would like another opportunity. Out of compassion, we should be willing to give it to them.
I accept marital breakdown and subsequent divorce will have an effect on children — no one can deny that. We never consider how fragile human relationships are or the mental torture they cause to people. We should see how we can support marriages through counselling and mediation, how we can encourage them to stay together and provide facilities to enable them do so.
We should look at the position of women in our society. Throughout this debate those who oppose divorce — and of those, mainly the men — continually mentioned the poverty of women. Many women, even those within marriages, are quite poor; it is only when marital breakdown occurs that it is exposed. Many who go through a legal separation will seek support from the State in the form of social welfare because that is the only money they have ever had as their own.
People who are concerned about the position of women in our society should stress that they can play an equal part and participate at all levels if they are given a choice and an opportunity to do this. Particularly they should be able to participate where the decisions in this society are made. We pay lip service to women in our Constitution and have done little else for them through the years. The huge contribution women make to happy family life in this country has been and continues to be ignored. As legislators we should discuss these matters and give women support for child care facilities and similar issues.
We should realise the benefits which can come from good marriages, but only if we support them. We should accept the reality of life as it exists, not as we would wish it to be. Unfortunately, not all marriages are good. We are discussing the civil law and we cannot use it to coerce people to live the lives we wish them to live. We must regulate the behaviour of individuals — we cannot force them to behave as we would prefer. We must consider what is important in our society and take that into account in all the legislation we make.
We must face the reality that marriages break down. From compassion, we must give them a second chance, which is why I support the removal of the ban on divorce from the Constitution, although I do not agree with the way the Minister is doing it. I will campaign for a "yes" vote. I also welcome the legislation introduced since 1985, particularly those Bills introduced by this Minister, and yesterday's announcement by the Minister for Social Welfare of a commission on the family. These are areas of huge importance and it is only now, perhaps because we are discussing divorce, that we look to the family, to women and to children, considering how they are affected by the way we organise our lives and what we can do to protect and make life better for them. I hope the referendum will be carried because I and my party will be supporting it.
This sort of debate is always the most difficult; it is near the bone for most of us because family members or friends may be involved. I congratulate the Minister and his staff on the amount of work they have put in to the Bill. We have had a conspiracy of silence on social issues. How long is it since we began to recognise single mothers, physical abuse within the family, sexual abuse of children, desertion of women, marital breakdown, or the formation of second families? These are all emotional issues to address because we do not want such a situation in this country, of which we are so rightly proud.
People are the essence of this legislation. The Judiciary and the law are important but improving the human condition for those who are seriously disadvantaged by their situation is even more so. If legislation such as this is needed, so be it. I support the Bill because at a professional and personal level I have seen too much grief and distress caused by the breakdown of marriage, when people have been unable to rectify their legal position in Ireland. One may say children born outside wedlock are in the same legal position as those born inside marriage, but we are still a conservative society and have a different sociological outlook on such matters. When marriages have been over, sometimes for 20 or 30 years, it is important that we address the problem.
I do not have grave worries that this will rock the stability of Irish marriages. If they are held together because there is no divorce, that is a sad position. For many women it is unfortunately more likely their marriages are held together by economic circumstances, such as Senator Honan outlined. If we have the rights and welfare of Irish women at heart, we will address more urgently the right to an income of women who only work within the home, the right to part of the family income, etc. Many rights have been introduced for Irish women within the last 20 years but many more should be considered.
One ironic development is that it took a debate on divorce to bring forward a commission on the family. For that reason the debate will have been well worthwhile. As I said earlier, I wholeheartedly welcome the commission and hope a great deal of energy will be put into it by all of us within the next three years.
An easy comparison was made between ourselves and the United States to suggest we were going in the same direction. It was made on the basis that we speak the same language, but that is only one factor which might bind two countries or which they might have in common. It is just as important to look at countries where the same culture, the same family strength or the same history may prevail. In that sense it is not fair to compare us to the US, which was founded on the principle of individual freedom and whose society is so vast that family life is not the same as in Ireland. Here it is based on small communities where people know each other and the extended family is important in our society. We should keep this in mind when people suggest our society will collapse if divorce is introduced. That is not the case. I have faith in the Irish people; they know their strengths and it is not fair to make that comparison.
Earlier someone mentioned cloud-cuckoo land. I would suggest one is living there if one chooses to ignore the fact that one in six marriages in Ireland breaks down, while a ban on divorce is enshrined in our Constitution. We are fooling ourselves if we pretend we are on a moral pedestal, are better than every other country and should not become like the US, because we are perfect and they are not. We must deal with the reality.
Another point which annoyed me during the debate was the reference to children. It was inferred that they suffer from divorce, but that has not been borne out by any survey — the opposite has been shown. It is true that children suffer from marital breakdown, unhappy families and seeing their parents argue at home behind closed doors, but they do not suffer from divorce as a legal process. This should be remembered by people when they are deciding how to vote.
Women have been referred to in this debate. It was said they would find themselves divorced against their will, or would be poorer in terms of pension rights. The facts speak for themselves — women gain from divorce. They apply for divorce in greater numbers than men in other countries where it is available. Many women do so, as Senator Honan said, because it gives them freedom they never had while living in the marital home. Often they had no independent income and divorce will give them that. In a marital relationship they were often not allowed to own the property or have any rights to it and divorce can provide that. In many cases, it is obvious women stand to gain from divorce. Women are no fools and they will make that judgment themselves. The laws adequately protect them and their children in terms of their rights to assets, etc.
One aspect which strikes me about the entire issue of divorce is that people will not examine the facts. The issues which have been debated for many days in both Houses will be totally ignored. When it comes to emotive issues, such as divorce, people tend to vote on the basis of fear. In this case, they fear they will be abandoned and divorced. However, what do they have to gain by the absence of divorce if only a legal bind keeps their husbands there? I do not understand that point and it is not doing people any service.
Acting Chairman
I remind the Minister that the Bill is not passed.
The Minister for Justice, Deputy Owen, will take it to its conclusion. One of us must vote.
I expected to be here approximately two hours ago.
Acting Chairman
Perhaps Senators could be more brief.
I appreciate that, Sir, but we listened patiently——
Acting Chairman
I do not mind staying with the Senator until 12 midnight but the Minister might not stay.
——to previous speakers. It is important that some of the points which were slanted in previous contributions are corrected and, as a politician, it is my duty to do so. Divorce is simply a legal process. It does not cause marital breakdown; people do that. It does not abuse children; people do that. It does not force anybody to do anything they do not wish to do. It is a legal process by which people whose marriages have long since collapsed can close the final chapter.
Acting Chairman
I remind the Senator that she is making a Second Stage speech. That is not on at this point. I must curtail you and put an end to it; fair is fair.
I congratulate the Minister, Deputy Taylor, for his work in getting the Bill this far. I also praise his work on the other legislation which was required to protect those who felt they were not protected when they voted against divorce in 1986. I am proud that long held Labour Party policy is being implemented; we are not one of the parties more recently converted to the civil right of divorce.
Acting Chairman
I call Senator Enright who is aware of my views at this stage.
I am aware of the Chair's views on most matters and they are always reasonable. I support the Bill and will vote in favour on the day. One of the main points made by Senator O'Kennedy is that the detail of the legislation will be included in the Constitution. I am in favour of this move. It is a safeguard to ensure quick divorces are not possible in our jurisdiction.
The Government has gone to great pains to come up with a constitutional amendment which is reasonable and fair. It experienced many difficulties but the contents of the Bill and the matter on which the people will vote are reasonable and fair. Safeguards are enshrined in the Bill and that is why I support it. We cannot ignore the fact that marriages break down and other relationships are established.
I never heard this type of thing before on the Final Stage.
Divorce is not at all desirable but we are now faced with the fact that a decision must be made. I agree with the Bill and I will support the constitutional amendment. I also thank the Minister for his hard work.
Acting Chairman
I call Senator Magner.
Perhaps the Senator can bring some reality back to the debate.
Senator Gallagher has said it all and in the interest of expediting justice, I will give way.
I welcome the passage of the Bill. It is now up to the people to decide what should be done. As I said on Second Stage, the introduction of divorce is unfortunate but necessary for the proper regulation of society, which has developed considerably since the good old days, which were mentioned earlier. However, much of the debate today related to marital breakdown and not divorce where a marriage has irretrievably broken down.
I expressed doubts about including the wording in the Constitution. However, that will be done if the referendum is passed. There is an onus on us to do our utmost to ensure the referendum is passed and that compassion is shown to those who have entered or wish to enter second relationships. As a practising Catholic divorce is not for me. It is not allowed but we must ensure that it is available to people who want it. This is only just and proper in a modern society.
Cuireadh agus aontaíodh an cheist.